Celik, the EUSS and human rights: without the Respondent’s consent the First-tier Tribunal Judge could not consider any Article 8 arguments in an EUSS appeal

“The Withdrawal Agreement lies at the heart of this case. It is therefore necessary to examine, in some detail, how the Withdrawal Agreement applies to a person, such as the appellant, who was (or may have been) in a durable relationship, prior to 31 December 2020, with an EU citizen but who did not marry the EU citizen until after that time”, paragraph 44 of Celik (EU exit, marriage, human rights) [2022] UKUT 220 (IAC) (19 July 2022)

The case of  Batool & Ors (other family members: EU exit) [2022] UKUT 219 (IAC) (19 July 2022), amongst other matters, effectively provides for the definition of family members and other (or extended) family members within the meaning of Article  2.2 and 3.2 of Directive 2004/38/EC when considering an EUSS appeal. In particular, the fact that extended family members did not enjoy automatic residence rights under EU law and had to be the beneficiary of a positive exercise of discretion, recognised by the grant of residence documentation, is relevant to ascertaining the point from which they can establish they retain/preserve their rights of residence thus enabling them to rely upon the EU Settlement Scheme (“EUSS”).

Background

The Appellant, a citizen of Turkey, arrived in the United Kingdom in September 2007 and claimed asylum. The claim was refused, as was a subsequent appeal. His claim having been refused and appeal rights exhausted, since 8 April 2019 the appellant remained unlawfully in the United Kingdom.

The Appellant began a relationship with a Romanian national in December 2019. The couple began cohabiting sometime in or after February 2020. On 10 March 2020 the Romanian national was granted limited leave to remain in the United Kingdom, pursuant to Appendix EU of the Immigration Rules.

Having made an application on 19 October 2020, for leave to remain under the EUSS the Respondent refused the application on 2 March 2021 on the basis that the appellant had not been issued with a registration certificate, family permit or residence card under the Immigration (European Economic Area (Regulations) 2016 as an extended family member (durable partner) of the Romanian  national; he therefore did not meet the requirements of the EUSS as a family member of a relevant EEA citizen. The appellant did not appeal against that decision.

On 20 October 2020, the Appellant made contact with Bracknell Forest Council’s Register Office, in order to secure a date for his wedding. On that date, the Appellant gave notice to the Register Office and paid them a fee of £50.  The Appellant stated that it was  due to Covid-19 restrictions and the lockdown rules which were in place at the time  that he and his fiancée,  were not given the date to get married before  31 December 2020. They only managed to get a date to get married on 9 April 2021.

Following his marriage, the Appellant made an application under the EU Settlement Scheme for leave to remain, on the basis that he was the spouse of a relevant EEA citizen. On 23 June 2021, the Respondent refused the Appellant’s application.

Application refused as a spouse and as a durable partner under the EU Settlement Scheme:

The Respondent within the refusal decision considered that the Appellant had, “not provided sufficient evidence to confirm that you were a family member of a relevant EEA citizen prior to the specified date, as defined in Annex 1 of Appendix EU (i.e. 2300 GMT on 31 December 2020). Your marriage certificate shows your marriage took place on 9 April 2021”.

The Respondent then considered whether the appellant met the eligibility requirements for settled status under the EU Settlement Scheme as a durable partner. Home Office records did not show that the Appellant had been issued with a family permit or residence card as the durable partner of the EEA national. Accordingly, the Respondent concluded that the Appellant did not meet the requirements for settled status under the EU Settlement Scheme.

On appeal, the Appellant’s appeal was dismissed by the First Tier Tribunal. His application for permission to appeal was granted to be heard in the Upper Tribunal.

Arguments raised by the Appellant

Amongst other arguments it was contended on the Appellant’s behalf:

  • the grounds of appeal permitted by regulation 8 of the Immigration( Citizens’ Rights Appeals) (EU Exit) Regulations 2020, the 2020 Regulations, entitled the Appellant to succeed, if he could demonstrate that the decision in his case was not a proportionate one.
  • the appellant was undoubtedly an applicant within the meaning of Article 18 of the Withdrawal Agreement and, accordingly, the First-tier Tribunal Judge was required to consider proportionality.
  • The sole effective reason why the appellant was refused limited leave to remain under paragraph EU14 of the Immigration Rules was that he married his wife after 11pm on 31 December 2020. By reason of Article 18(1)(r), the First-tier Tribunal Judge should have had regard to what was said to be the “undisputed facts and circumstances”, that the appellant’s marriage could not take place before the specified date, due to the Covid-19 pandemic and the resulting public emergency, all of which was beyond his control.
  • the principle of proportionality facilitates a deeper exploration of the fairness of the decision. On the facts, the appellant had a strong legal and moral case and it would be “staggeringly unjust” if he could not benefit from the EUSS, in all the circumstances.
  • If, contrary to the submissions, the appellant was unable to succeed as the spouse of an EU citizen, he should qualify as a durable partner. The suggestion that, in order to be durable, the relationship must have existed for at least two years is merely a “rule of thumb”: YB (EEA Reg 17(4), proper approach) Ivory Coast [2008] UKAIT 00062 (IAC). Furthermore, the definition of “durable partner” in Appendix EU expressly allows for a shorter period of residence if there is “other significant evidence of the durable relationship”.
  • there were such other significant evidence in the present case. The Appellant and his wife had provided considerable evidence of the durability of the relationship through witness statements, a tenancy Agreement, council tax bills, utility bills, photographs and letters of support. The fact that the couple continued to cohabit, as evidenced in utility bills etc from April to June 2022 is, significant evidence that the relationship was at all times durable.
  • The First-tier Tribunal Judge was wrong to hold, that the grounds of appeal in regulation 8 do not allow for an appeal to be advanced on human rights grounds. The Appellant has a family life with his wife and her daughter (now his stepdaughter); and that the undoubted interference with that life caused by the Respondent’s decision is a breach of Article 8 of the ECHR and Article 7 of the Charter of Fundamental Rights.

Applicable provisions- the Withdrawal Agreement:

The Upper Tribunal generally had this to say regarding the Withdrawal Agreement:

  • Article 126 provides for a transition period, which started on the day of the entry into force of the Withdrawal Agreement and ended at 23:00 hours GMT on 31 December 2020. During that period, EU law continued to apply in the United Kingdom. Thereafter, Article 4 provides for individuals to rely directly on the provisions of the Withdrawal Agreement, which meet the conditions for direct effect under EU law. In accordance with Article 4, the Withdrawal Agreement is given direct effect in the United Kingdom by section 7A of the European Union (Withdrawal) Act 2018.
  • Part 2 of the Withdrawal Agreement makes provision in relation to citizens’ rights. Article 10 sets out who is within scope of Part 2. That Part includes Article 18, upon which the appellant sought to rely.
  • “Family members “are defined in Article 9. The opening words of the definition of “family members” also require the person concerned to “fall within the personal scope provided for in Article 10” of the Withdrawal Agreement.
  • Article 10.2 and 10.3. provides: “2. Persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC whose residence was facilitated by the host State in accordance with its national legislation before the end of the transition period in accordance with Article 3(2) of that Directive shall retain their right of residence in the host State in accordance with this Part, provided that they continue to reside in the host State thereafter” and “3.Paragraph 2 shall also apply to persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC who have applied for facilitation of entry and residence before the end of the transition period, and whose residence is being facilitated by the host State in accordance with its national legislation thereafter”.
  • Article 3(2) of Directive 2004/38/EC requires Member States to “facilitate entry and residence” for “any other family members” who are dependents or members of the household of the Union citizen; or where serious health grounds strictly require the personal care of the family member by the Union citizen. A person is also within Article 3.2 if they are a “partner with whom the Union citizen has a durable relationship, duly attested”. For such persons, the host Member State is required to “undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people”.

As regards principles of EU law, the Upper Tribunal stated:

“69. We have earlier set out paragraph 73 of Mr Hawkin’s skeleton argument. At risk of repetition, we agree with Ms Smyth that the appellant cannot have regard to EU principles of law, the Citizens Rights Directive or the Charter of Fundamental Rights, except to the extent that this is required by the Withdrawal Agreement. In the present case, that Agreement does not require or permit a court or tribunal to do so. Directive 2004/38/EC no longer applies in the United Kingdom, as a general matter. The Charter of Fundamental Rights no longer applies: section 5(4) of the EU (Withdrawal Act 2018). Although part of “Union law” for the purposes of the Withdrawal Agreement, the Charter does not apply generally”.

Appellant not within scope of the Withdrawal Agreement -not a family member nor durable partner

The Upper Tribunal provided the following reasons why they considered the Appellant was not caught by the provisions of the Withdrawal Agreement:

  • The Appellant was not a family member to whom Part 2 of the Withdrawal Agreement applies. He was not a person who, in the words of Article 10.1(e)(i), resided in the United Kingdom in accordance with Union law before 11pm on 31 December 2020 and who continues to reside here afterwards. Nor does he fall within the scope of Article 10.1(e)(ii) or (iii).
  • The only way the Appellant could bring himself within the scope of Part 2 and, thus, Article 18, was if he fell within Article 10.2( set out above).
  • There can be no doubt that the Appellant’s residence in the United Kingdom was not facilitated by the Respondent before 11pm on 31 December 2020. It was not enough that the Appellant may, by that time, have been in a durable relationship with the person whom he married in 2021. Unlike spouses of EU citizens, extended family members enjoyed no right, as such, of residence under the EU free movement legislation. The rights of extended family members arose only upon their residence being facilitated by the respondent, as evidenced by the issue of a residence permit, registration certificate or a residence card: regulation 7(3) and regulation 7(5) of the 2016 Regulations.
  • If the appellant had applied for facilitation of entry and residence before the end of the transition period, Article 10.3 would have brought him within the scope of that Article, provided that such residence was being facilitated by the Respondent “in accordance with … national legislation thereafter”. This was not, however, the position. For an application to have been validly made in this regard, it needed to have been made in accordance with regulation 21 of the 2016 Regulations. That required an application to be submitted online, using the relevant pages of http://www.gov.uk, by post or in person, using the relevant application form specified by the respondent; and accompanied by the applicable fee.
  • After 30 June 2021, a favourable decision of the Respondent by reference to a pre-31 December 2020 application, results in a grant of leave under the EUSS, rather than a grant of residence documentation under the 2016 Regulations. The Appellant made no such application.
  • The above analysis was destructive of the Appellant’s ability to rely on the substance of Article 18.1. He had no right to call upon the Respondent to provide him with a document evidencing his “new residence status” arising from the Withdrawal Agreement because that Agreement gave him no such status. He was not within the terms of Article 10 and so could not show that he was a family member for the purposes of Article 18 or some other person residing in the United Kingdom in accordance with the conditions set out in Title II of Part 2.
  • The Appellant’s attempt to rely on his 2021 marriage to an EU citizen was misconceived. EU rights of free movement ended at 11pm on 31 December 2020, so far as the United Kingdom and the present EU Member States are concerned. The Withdrawal Agreement identifies large and important classes of persons whose positions in the host State are protected, following the end of the transition period. The appellant, however, did not fall within any such class.
  • It was not possible to invoke principles of EU law in interpreting the Withdrawal Agreement, save insofar as that Agreement specifically provides. This is apparent from Article 4(3). It is only the provisions of the Withdrawal Agreement which specifically refer to EU law or to concepts or provisions thereof which are to be interpreted in accordance with the methods and general principles of EU law. EU law does not apply more generally.
  • The clarity provided by Article 10 of the Withdrawal Agreement reflects the intention of the United Kingdom and the EU that the Agreement should ensure an orderly withdrawal of the UK; protect only those United Kingdom and EU citizens who were exercising free movement rights before a specific date (see the 6th recital); and provide legal certainty to citizens and economic operators as well as to judicial and administrative authorities (see the 7th recital).
  • Sub-paragraphs (a) to (d) of Article 18 make specific provision for late submission of an application for a new residence status. One looks in vain in Article 18 and elsewhere in the Withdrawal Agreement for anything to the effect that a person who did not meet the relevant requirements as at 11pm on 31 December 2020 can, nevertheless, be treated as meeting those requirements by reference to events occurring after that time. If that had been the intention of the United Kingdom and the EU, the Withdrawal Agreement would have so specified. Article 31 of the Vienna Convention on the Law of Treaties (1969) requires a treaty to be “interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. It would plainly be contrary to the Vienna Convention to interpret the Withdrawal Agreement in the way for which the appellant contends.

Principle of proportionality( or fairness) inapplicable in order to compel the Respondent to grant the Appellant leave:

The Upper Tribunal noted that the Appellant placed great reliance on Article 18.1(r) of the Withdrawal Agreement which gives a right for “the applicant” for new residence status to have access to judicial redress procedures, involving an examination of the legality of the decision as well as of the facts and circumstances on which the decision is based. These redress procedures must ensure that the decision “is not disproportionate”.

The Upper Tribunal concluded:

  • The nature of the duty to ensure that the decision is not disproportionate must, however, depend upon the particular facts and circumstances of the applicant. The requirement of proportionality may assume greater significance where, for example, the applicant contends that they were unsuccessful because the host State imposed unnecessary administrative burdens on them. By contrast, proportionality is highly unlikely to play any material role where, as here, the issue is whether the applicant falls within the scope of Article 18 at all.
  • there was no dispute as to the relevant facts. The appellant’s residence as a durable partner was not facilitated by the Respondent before the end of the transitional period. He did not apply for such facilitation before the end of that period. As a result, and to reiterate, he could not bring himself within the substance of Article 18.1
  • Against this background, the Appellant’s attempt to invoke the principle of proportionality in order to compel the Respondent to grant him leave amounted to nothing less than the remarkable proposition that the First-tier Tribunal Judge ought to have embarked on a judicial re-writing of the Withdrawal Agreement. The First-tier Tribunal Judge quite rightly refused to do so.
  • Closely linked to the Appellant’s submissions on proportionality was his attempt to invoke the principle of fairness. The Appellant’s case is that he would have secured a date for his wedding to take place before 31 December 2020, but for the Covid-19 pandemic. Although there was nothing in the exchanges with the Register Office that confirms this assertion, the Upper Tribunal took the appellant’s case at its highest and assumed that this was so.
  • The Upper Tribunal concluded that even on that assumption, however, the principle of fairness could not assist the appellant. As is the case with proportionality, it did not give a judge power to disregard the Withdrawal Agreement.

Whether the First-tier Tribunal has jurisdiction, in an EUSS appeal, to consider human rights:

The First-tier Tribunal Judge stated that she “refused to consider an Article 8 argument, no human rights case having been made and it not been an available ground of appeal under the 2020 Regulations”.

It was submitted that the Appellant clearly had a family life with his wife and stepdaughter and that the undoubted interference with that life, occasioned by the Respondent’s decision, is a disproportionate interference with Article 8 of the ECHR.

The Appellant sought to rely on regulation 9(4) of the Immigration( Citizens’ Rights Appeals) (EU Exit) Regulations 2020, the 2020 Regulations. This provides that the relevant authority may also consider any matter which it thinks relevant to the substance of the decision appealed against, including a matter arising after the date of the decision. The Upper Tribunal considered that the word “also” signifies that regulation 9(4) is an addition to the requirement on the relevant authority to consider a matter raised in response to a notice issued by the respondent under section 120 of the Nationality, Immigration and Asylum Act 2020. A matter raised in such a statement must be considered if it constitutes a specified ground of appeal; that is to say a ground under regulation 8 or a ground mentioned in section 84 of the 2002 Act (international protection/revocation of protection status/human rights).

Regulation 9(5), however, provides that the power conferred by regulation 9(4) is limited, in that the relevant authority “must not consider a new matter without the consent of the Secretary of State”. Regulation 9(6) provides that a matter is a “new matter” if, inter alia, “it constitutes a ground of appeal of a kind listed in regulation 8 or section 84 of the 2002 Act”.

The Upper Tribunal considered that the first question was to decide whether the First-tier Tribunal has jurisdiction, in an appeal of this kind, to consider human rights. The question arose because decision-making under residence scheme immigration rules (Appendix EU) does not involve a consideration of the applicant’s (or any other person’s) rights under Article 8 of the ECHR.

The Upper Tribunal concluded as follows:

“93. In order for regulation 9(4) to come into play, two requirements must be satisfied. There must be a “matter”, in the sense of being the factual substance of a claim: Mahmud (s.85 NIAA 2002 – ‘new matters’) [2017] UKUT 00488 (IAC) at paragraph 29. Second, the matter must be “relevant to the substance of the decision appealed against”. The interpretation of the words “relevant to the substance of the decision”, as found in section 85(4) of the 2002 Act, was considered by the Supreme Court in Patel & Others v SSHD [2013] UKSC 72; [2014] Imm AR 456. Giving the lead judgment, Lord Carnwath (with whom Lord Kerr, Lord Reed and Lord Hughes agreed) upheld the “wide” construction of the words, which had been taken by the majority of the Court of Appeal in AS (Afghanistan) v SSHD [2011] EWCA Civ 833; [2011] Imm AR 832. Under this approach, the substance of the decision appealed against is no more than the decision to refuse to grant or vary leave to enter or remain (or entry clearance) as opposed to, for example, a “decision to refuse to vary leave to remain under rule x” (Sullivan LJ at paragraph 113).

94.Transposed to regulation 9 of the 2020 Regulations, the “decision appealed against”, is, in the present case, the decision to refuse to grant the appellant leave to enter or remain generally, as opposed to a decision to refuse him leave to enter or remain under the EUSS rules specifically.

95.This means that regulation 9(4) confers a power on the First-tier Tribunal to consider a human rights ground, subject to the prohibition imposed by regulation 9(5) upon the Tribunal considering a new matter without the consent of the respondent.

96.Given what we have said about the nature of the respondent’s decision-making under Appendix EU, the raising of a human rights claim will always be a” new matter”, except where, for some reason, the respondent has already considered it.

97.In the present case, the respondent’s consent was not sought by the appellant, let alone given. As a result, even though the First-tier Tribunal Judge might have been mistaken as to the ambit of regulation 9(4), any error in this regard is immaterial. Since the respondent had not consented, the First-tier Tribunal Judge was prevented by regulation 9(5) from considering any Article 8 argument.

98.As the respondent submits, if the appellant now wishes to claim that he should be permitted to remain in the United Kingdom in reliance on Article 8, he can and should make the relevant application, accompanied by the appropriate fee”.

Conclusion

Only some few paragraphs in Celik are dedicated to considerations of whether the First-tier Tribunal has jurisdiction, in an EUSS appeal, to consider human rights.

The rest of the Upper Tribunal’s judgement relates to reasoning and conclusions as regards how the Appellant missed an opportunity to either marry his EU partner( who was based in the United Kingdom) by 31 December 2020 or submit an application as an extended family member( durable partner) by the said date. Having done neither by 31 December 2020 he was not caught by the provisions of the Withdrawal Agreement and his EUSS application of 2021 accordingly failed.

Accordingly as per the summary Headnote in Celik :

“(1) A person (P) in a durable relationship in the United Kingdom with an EU citizen has as such no substantive rights under the EU Withdrawal Agreement, unless P’s entry and residence were being facilitated before 11pm GMT on 31 December 2020 or P had applied for such facilitation before that time.

(2) Where P has no such substantive right, P cannot invoke the concept of proportionality in Article 18.1(r) of the Withdrawal Agreement or the principle of fairness, in order to succeed in an appeal under the Immigration (Citizens’ Rights) (EU Exit) Regulations 2020 (“the 2020 Regulations”). That includes the situation where it is likely that P would have been able to secure a date to marry the EU citizen before the time mentioned in paragraph (1) above, but for the Covid-19 pandemic.

(3) Regulation 9(4) of the 2020 Regulations confers a power on the First-tier Tribunal to consider a human rights ground of appeal, subject to the prohibition imposed by regulation 9(5) upon the Tribunal considering a new matter without the consent of the Secretary of State”.

The result in Celik unfortunately leaves quite a few affected individuals having to resort to Article 8 applications either by reference to Appendix FM or Article 8 ground outside the Rules having regard to Exceptional Circumstances – along with the need in most cases to make provision for exorbitant Home Office application fees.

 

 

 

Extended family members following Batool(and Celik): why the odds were heavily stacked against the Appellants from the start

Following the departure of the United Kingdom from the European Union and in the context of the EU Settlement Scheme (“EUSS”), the Upper Tribunal in Batool & Ors (other family members: EU exit) [2022] UKUT 219 (IAC) (19 July 2022) considered the position of  “other family members” within the meaning of Article 3.2 of Directive 2004/38/EC.

The definition of “other family members” is found in Article 3(2) of the Directive.

Until 31 December 2020, the Directive was implemented in the United Kingdom by means of the Immigration (European Economic Area) Regulations 2016, i.e the 2016 Regulations. These Regulations described other family members as “extended family members”.

FP6(1) of the EUSS was the relevant provision in the case of the Appellants in Batool. It required them to be “family members of a relevant EEA citizen”, as defined in Annex 1 – a “family member of a relevant EEA citizen”  which must be a spouse, civil partner or durable partner of a relevant EEA citizen; or be the child or dependant parent of such a citizen, or of that citizen’s spouse or civil partner.

The Directive 2004/38/EC and the 2016 Regulations set out the  definitions of family members and other(or extended)  family members, in particular  that other family members did not enjoy automatic residence rights under EU law: they had to be the beneficiary of a positive exercise of discretion, recognised by the grant of residence documentation.

Articles 9, 10 ad 18 of the Withdrawal Agreement are an aid in understanding the circumstances in which other(extended) family members can seek to establish that they retain/preserv their rights of residence thus enabling them to rely upon the EU Settlement Scheme (“EUSS”).

Directive 2004/38/EC and the 2016 Regulations- difference between Family members and Other( or extended)  family members:

Family members:

Article 2(2) of the Directive provides that “family member” means:

“(a) the spouse;

(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;

(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);

(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b)”.

Regulation 7 of the 2016 Regulations sets out the definition of family member.

‘close’ or “direct” family members can therefore include a spouse, civil partner, dependent child or dependent parent.

Other(or extended)  family members:

Article 3(2) of the Directive requires other family members to be persons who do not fall within the definition of “family member” in Article 2:

“1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

2.Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

(b) the partner with whom the Union citizen has a durable relationship, duly attested”.

Regulation 8 of the 2016 Regulations provides the definition of extended family members.

“other “ or ‘extended’ family member can  for example be a brother, sister, aunt, uncle, cousin, nephew, niece or unmarried partner.

Other family members never enjoyed automatic residence rights under EU law. Not only did an individual have to satisfy the definition of other family member (extended family member under the 2016 Regulations); they also had to be the beneficiary of a positive exercise of discretion, recognised by the grant of residence documentation.

A host Member State is required by Article 3(2) to “undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people”.

Even if a person satisfies the requirements to be an other family member, Member States are under no obligation to accord that person a right of entry and residence. The obligation is merely to “facilitate” entry and residence.

An extended family member who had been issued with a residence card was, by reason of Regulation 7(3) of  the 2016 Regulations to be treated as a family member, for as long as they continued to satisfy the relevant condition in regulation 8 and provided the residence card remained in force.

Therefore unlike the family members whose rights flow directly from their position as such, other/extended family members have no such status, unless and until issued with the relevant permit, certificate or card.

The Withdrawal Agreement- Family members and Other( or extended)  family members:

The Withdrawal Agreement was signed on 19 October 2019. Article 126 contains a transition period. That period started on the day of entry and to force of the Agreement and ended on 23:00 hours GMT on 31 December 2020. During that period, EU law continued to apply in the United Kingdom.

Part 2 of the Withdrawal Agreement makes provision in relation to citizens’ rights. Both Articles 10 and 18 are contained within Part 2:

  • from Article 18.1 and 18.4, the Withdrawal Agreement allows a host State to introduce “constitutive residence schemes”, which means that EU citizens and their direct family members can now be required to apply for residence rights, as opposed to enjoying them by virtue of their status and activities in the host Member State.
  • Article 10.1(e) and (f) refer to “family members”. The expression “family members” is defined in Article 9. The definition does not encompass “other family members” within the meaning of Article 3(2) of the 2004 Directive. Such persons are brought within the application of Part 2 of the Withdrawal Agreement by Article 10.2 which states: “2. Persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC whose residence was facilitated by the host State in accordance with its national legislation before the end of the transition period in accordance with Article 3(2) of that Directive shall retain their right of residence in the host State in accordance with this Part, provided that they continue to reside in the host State thereafter.” and  “3.Paragraph 2 shall also apply to persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC who have applied for facilitation of entry and residence before the end of the transition period, and whose residence is being facilitated by the host State in accordance with its national legislation thereafter.”
  • Article 10.3, Article 10.2 applies to persons falling under points (a) and (b) of Article 3(2) of the Directive, provided they “have applied for facilitation of entry and residence before the end of the transition period, and whose residence is being facilitated by the host State in accordance with its national legislation thereafter”.
  • The reference to “national legislation” reflects the fact that the arrangements for other family members are primarily regulated by domestic law.

The EUSS and Family members:

The EUSS was introduced on 30 March 2019. It enables EU, other EEA and Swiss citizens resident in the United Kingdom by the end of the transition period, and their family members, to obtain the necessary immigration status in order to reside lawfully in the United Kingdom, following the United Kingdom’s exit from the EU.

From the formal introduction of the EUSS on 30 March 2019 until 31 December 2020, EEA citizens and their family members could apply either under the 2016 Regulations or under the EUSS.

Having regard to  Article 10 of the Withdrawal Agreement, in order to fall within the scope of Part 2 (and, thus, Article 18) a person asserting to be an other family member must have “applied for facilitation of entry and residence before the end of the transition period”.

Appendix EU (FP) applies to persons residing outside the United Kingdom. It contains the conditions for the grant of either:

  • an EUSS family permit to join a relevant EEA citizen or a qualifying British citizen in the United Kingdom or to accompany them to the United Kingdom; or
  • an EUSS Travel Permit.

FP6(1) and (2) contain the eligibility requirements for entry clearance to be granted in the form of an EUSS family permit.

Background to the appeals:

The relevant EU national  was Persida Sultan, a Romanian national. She was married to Zahoor Sultan who was, the paternal uncle of all four of the appellants; accordingly  Persida Sultan was their aunt by marriage.

The first and second appellants were sister and brother, aged 17 and 10 at the date of the application. Their father was Chaudhary Ghulam Shabbir.

The third and fourth appellants were brothers, aged respectively 13 and 10 at the date of the application. Their father was Muhammed Amir Chaudhry.

On 3 February 2020 the appellants made their applications to the Respondent. The applications were made under the EUSS by reference to Appendix EU (Family Permit) to the Immigration Rules (“Appendix EU (FP)”).  At that time, the appellants were living in Pakistan with their 2 grandparents.

The grandparents(as dependant direct relatives in the ascending line) entered the United Kingdom on 17 July 2020 having been granted their EUSS family permits. They were granted limited leave to remain under Appendix EU on 23 September 2020 (grandfather) and 2 October 2020 (grandmother). After the grandparents travelled to the United Kingdom, the appellants were left  living with a woman from their village who was employed to look after them.

On 21 December 2020, Zahoor Sultan took the grandparents back to Pakistan.

Basis of refusal – Appellants were not family members for the purposes of the EUSS:

The Appellants’ applications were refused by the Respondent on 20 February 2020 on the basis that none of them met the eligibility requirements for an EUSS family permit. This was because, unlike the grandparents, the appellants were not family members of Persida Sultan for the purposes of the EUSS.

The Appellants appealed against that decision, pursuant to regulation 3 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (“the 2020 Appeals Regulations”).

The Appellant’s arguments in the Upper Tribunal:

The Appellants’ appeal having been dismissed by the First Tier Tribunal, it was contended on their behalf in the Upper Tribunal that:

  • As a matter of domestic law, the appellants did, in fact, fall within the scope of the expression “family member of a relevant EEA citizen” in Appendix EU (FP). Those immigration rules fall to be interpreted in the light of the Withdrawal Agreement.
  • The appellants contended that other family members who have applied for a residence card or immigration document fall within the scope of the Withdrawal Agreement; specifically, Article 10(3). Pursuant to Article 10(5) they are accordingly entitled to be issued with a residence document.
  • It was argued that Article 18 of the Withdrawal Agreement requires the United Kingdom to issue residence documents to family members and “other persons”, that expression being a shorthand for extended family members and those in a durable relationship.
  • the concession made by the representative of the appellants before the First-tier Tribunal Judge was wrong. The appellants are family members of a relevant sponsor. This is because they are the nieces/nephews of the sponsor’s husband who have been and continue to be financially dependent on the sponsor/husband and who have been and continue to be a member of the sponsor/husband’s household in Pakistan.
  • Given that the appellants applied for entry clearance before 31 December 2020 and their application was decided after that date, they continued to be beneficiaries under Article 10 of the Withdrawal Agreement. Furthermore, and in any event, the appellants had made a valid application which should have been treated by the respondent as an application under the 2016 Regulations.
  • Regarding Article 8 of the ECHR, it was submitted that the First-tier Tribunal was required to “go on to decide the merits of the appeal, on invitation, in accordance with Article 7 and 24 of the Charter of the Fundamental Rights of the EU (“the EU Charter”) and then if necessary go on to consider Article 8 ECHR and section 55” of the Borders, Citizenship and Immigration Act 2009 (best interests of child).
  • Alternatively, the appellants submitted that their “underlying case was a human rights claim”, the refusal of which was appealable: section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”); Baihinga (r.22; human rights appeal: requirements) [2018] UKUT 00090 (IAC); [2018] Imm AR 930.
  • nothing in the 2002 Act or the 2020 Appeal Regulations precluded them from making a human rights claim or having it decided by the First-tier Tribunal under section 82(1)(b) of the 2002 Act. In any event, Article 8 of the ECHR can be raised as a ground of appeal at first instance, as it was relevant to the substance of the decision. It was not a “new matter”. Even if it was such a matter, the presenting officer before the First-tier Tribunal Judge consented to Article 8 being considered.
  • where an individual has made an application which also consists of “an underlying Article 8 ECHR claim” and this has been considered by the Respondent, then it is not a “new matter” and the First-tier Tribunal must therefore consider the merits of it, without requiring the consent of the Secretary of State.

The Upper Tribunal’s considerations and conclusions:

No breach of the Appellants’ rights under the Withdrawal Agreement- Respondent’s decisions were in accordance with Appendix EU (FP):

  • Although the Appellants were permitted to withdraw the concession made on their behalf in the First-tier Tribunal, it was considered plain from the analysis of the relevant provisions that, notwithstanding the submissions now made on their behalf, the Appellants simply did not fall within the terms of Appendix EU (FP). Those immigration rules give effect to the Withdrawal Agreement and the appellants are not family members within the scope of Article 18.1 of the Withdrawal Agreement.
  • Faced with this difficulty, it was noted the Appellants contended that the application they made on 3 February 2020 under Appendix EU (FP) was an application “for facilitation of entry and residence” for the purposes of Article 10.3 of the Withdrawal Agreement. The Upper Tribunal however considered that it was plain that Article 10.3 encompasses those who apply for entry or residence as other family members. The expression “facilitation” in the context of the preceding phrase “persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC” puts that beyond doubt. The appellants’ applications were not made on the basis that the Secretary of State should exercise discretion in their favour, as part of her obligations as identified by the CJEU in The application material made it crystal clear what the basis of the applications was. The appellants applied on the basis that they were family members.
  • If the Appellants had applied under the 2016 Regulations as extended family members, then the effect of the transitional provisions would have been such as to require the Respondent to reach a decision, even after 31 December 2020, on whether their residence should be “facilitated”. In the event of a negative decision, a right of appeal would have lain to the First- tier Tribunal. As a result of a concession by the Secretary of State, now contained in immigration rules, a decision in the appellants’ favour would have led to the grant of leave, rather than the provision of EU (EEA) residence documentation (which is no longer available).
  • The appellants did not apply for facilitation of entry and residence.
  • The Upper Tribunal noted the Appellants’ argument in the alternative that, notwithstanding they applied under EUSS rather than under the 2016 Regulations, the Respondent ought to have treated their applications as being made under those Regulations: The Upper Tribunal however concluded that the guidance on http://www.gov.uk, however, showed that the Secretary of State had been at pains to provide potential applicants with the relevant information, in a simple form, including highlighting the crucial distinction between “close family members” and “extended family members”. That was a distinction which, as seen from the Directive and the case law, is enshrined in EU law. It is not a novel consequence of the United Kingdom’s leaving the EU. It was, accordingly, not possible to invoke sub-paragraphs (e) and (f) of Article 18 as authority for the proposition that the Respondent should have treated one kind of application as an entirely different kind of application.
  • It could not be disproportionate for the Respondent and the Secretary of State, faced with the scale of EUSS applications, to devise and operate a system which draws attention to the two fundamentally different ways in which a family application should be made, and which then determines applications by reference to what an applicant is specifically asking to be given.
  • The upshot was that the Appellants could not show their rights under the Withdrawal Agreement were breached by the Respondent’s decisions. The Appellants could not show that those decisions were not in accordance with Appendix EU (FP). Accordingly, the First-tier Tribunal could not allow their appeals by reference to Regulation 8 of the 2020 Appeal Regulations.

The Tribunal had no jurisdiction in an appeal governed by the 2020 Appeal Regulations to consider a “human rights” ground in this appeal:

The Appellants contended that the First-tier Tribunal Judge had a duty to consider their human rights and that this was not capable of being a “new matter” requiring the Secretary of State’s consent.

It was submitted that, where an appellant has made an application for residence pursuant to Article 18 of the Withdrawal Agreement, and the application contains a human rights claim which is refused, then the appellant may appeal on human rights grounds/grounds based on the EU Charter; and that this matter must be considered by the First-tier Tribunal.

It was contended that, if the Appellant did  not satisfy the EUSS, then the First-tier Tribunal in an appeal under the 2020 Appeal Regulations “must go on to decide the merits of the appeal, on invitation, in accordance with Articles 7 and 24 of the Charter of Fundamental Rights of the EU and then if necessary go on to consider Article 8 ECHR and section 55”. If the view is taken that the situation is not covered by European Union law, then the First-tier Tribunal  “must undertake that examination in the light of Article 8(1) of the ECHR”.

The Upper Tribunal concluded:

  • The first task was to decide whether the First-tier Tribunal has jurisdiction in an appeal governed by the 2020 Appeal Regulations to consider a “human rights” ground. This involves an analysis of regulation 9 of the 2020 Appeal Regulations.
  • Regulation 9(4) provides that the first-tier Tribunal has power to consider any matter which it thinks relevant to the substance of the decision. Here, however, the First-tier Tribunal can do so only with the consent of the Secretary of State, if the matter is a “new matter” as defined in regulation 9(6). This provides that the matter will be a “new matter” if it constitutes a ground of appeal of a kind listed in regulation 8 or section 84 and the Secretary of State has not previously considered the matter in the context of the decision appealed against under the Regulations or in the context of a section 120 statement from the appellant.
  • The “jurisdiction” issue under regulation 9(4) in the context of Article 8 ECHR was addressed by the Upper Tribunal in Celik (EU exit, marriage, human rights) [2022] UKUT 220 (IAC) (19 July 2022). In essence, the Upper Tribunal found that the First-tier Tribunal has jurisdiction under regulation 9(4) to consider a human rights ground on an appeal against refusal of an application under the EUSS, provided that, if it is a “new matter”, the Secretary of State consents. Unless the Secretary of State has previously considered the Article 8 ECHR issue in the context of the decision appealed against or in a section 120 statement, the Secretary of State’s consent will be necessary in order for the First-tier Tribunal to consider the Article 8 issue. In order to succeed in an application for entry clearance under Appendix EU(FP), an applicant must meet the specific requirements of those rules. Since neither Appendix EU nor Appendix EU(FP) is intended to, and does not, give effect to the UK’s obligations under Article 8 ECHR, consideration of Article 8 forms no part of the decision-making process in relation to such an application. Regardless of the strength of any Article 8 claim, leave could not be granted under those provisions unless the requirements of the relevant rules were satisfied.
  • The application materials in the appeals did not refer to human rights matters. They were, in no sense, a human rights claim within the meaning of section 113(1) of the 2002 Act. The decisions refusing the Appellants’ applications made no reference to human rights. The decisions could in no way be regarded as refusals of human rights claims within the meaning of section 82(1)(b) of that  2002 Act.
  • the EU Charter had no bearing on the appeals. The EU Charter ceased to be part of the United Kingdom’s law on 31 December 2020: section 5(4) of the European Union (Withdrawal) Act 2018. The “saving” in section 5(5) merely concerns fundamental rights or principles which exist irrespective of the EU Charter. Since Article 7 of the EU Charter corresponds to Article 8 ECHR, the effect of section 5(5) is to put beyond doubt that Article 8 ECHR continues to apply after 31 December 2020.
  • Article 24 of the EU Charter concerns the rights of the child. Article 24.1 was irrelevant in the present context. Article 24.2, which requires a child’s best interests to be a primary consideration in all actions relating to children, broadly corresponds with section 55 of the Borders, Citizenship and Immigration Act 2009, insofar as the Respondent is concerned. The Appellants however, failed to explain how the Respondent’s decisions under EUSS (FP) could conceivably have been different, merely because the appellants were children; still less how section 55 can be a material factor in an appeal brought under the 2020 Appeal Regulations.
  • The submission that retained EU law is such as to require the Respondent and the First-tier Tribunal to determine the Article 8 rights of the appellants in the context of an appeal under the 2020 Appeal Regulations was noted as was the Appellants’ reliance upon Dereci and Others v Bundesministerium f ür Inneres [2012] 1 CMLR 45; [2012] Imm AR 230 (“Dereci”) at paragraph 72.
  • The Upper Tribunal stated they were in no doubt that Dereci does not have the effect for which the appellants contend, even if it somehow remains part of United Kingdom law for the purposes with which they were concerned. If the position were otherwise, Schedule 2 (appeals to the First-tier Tribunal) to the 2016 Regulations would have been framed so as to include, as a ground of appeal, that the decision under those Regulations was a violation of Article 8 of the ECHR.
  • The judgment of the Court of Appeal in Amirteymour v SSHD [2017] EWCA Civ 353; [2017] Imm AR 1368 made the Appellants’ case untenable. There, the Court held that human rights could not constitute a ground of appeal under the 2006 Regulations (the predecessors of the 2016 Regulations), unless it had featured in a response to a section 120 notice (the “new matter” provisions not having come into being at that time).
  • The position, therefore, was that, unless there has been a section 120 response raising human rights, the First-tier Tribunal may entertain a submission that leave should be granted in order to avoid a breach of section 6 of the Human Rights Act 1998, only with the consent of the Secretary of State if this would involve consideration of a “new matter”.
  • Since the Respondent’s decision making under Appendix EU (F P) is not concerned with human rights issues, the raising of a human rights claim will always be a “new matter” unless, for some reason, the Secretary of State has already considered it.
  • For the reasons he gave, the First-tier Tribunal Judge was entitled to conclude, on the evidence, that the decisions refusing entry clearance were “entirely compatible with respect for their family and private life to which the appellants are entitled by Article 8 of the ECHR”.

Conclusion

Despite spirited efforts, the Appellants in Batool could not show the First-tier Tribunal’s decision in dismissing their appeal  involved the making of an error on a point of law. Their appeals were therefore dismissed.

As the applicants were nephews/nieces of the EU Sponsor( and her husband who was their paternal uncle),  their applications of 3 February 2020 should instead have been made at that time under the 2016 Regulations as other/extended family members rather than  under the EUSS.

Once the four applications for family permits were refused on 20 February 2020 their entire cases should have been reviewed so as to properly identity the applicable law as to eligibility and the relevant application method to utilise.  An appeal should not have been lodged in response to the refusal decisions- rather new family permit applications under the 2016 Regulations should have been made by 31 December 2020 to thereafter enable issue of appropriate residence documentation.

By the time the appeals were heard by the Upper Tribunal, two years after the refusal decisions, the odds were heavily stacked against the Appellants having regard to the provisions of law which had come into effect. Hence the Upper Tribunal’s conclusions in Batool as per its Headnote:

“(1) An extended (oka other) family member whose entry and residence was not being facilitated by the United Kingdom before 11pm GMT on 31 December 2020 and who had not applied for facilitation of entry and residence before that time, cannot rely upon the Withdrawal Agreement or the immigration rules in order to succeed in an appeal under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020.

(2) Such a person has no right to have any application they have made for settlement as a family member treated as an application for facilitation and residence as an extended/other family member”.

Unfortunately, the principles and legal effect arising in Batool applies to other extended family members such as  brothers, sisters, uncles and aunts who failed to apply for a family permit  by 31 December 2020 under the 2016 Regulations.  As in Batool, they are unable now to rely upon the EUSS and neither can they rely upon the 2016 Regulations as these provisions have been revoked.

Celik (EU exit, marriage, human rights) [2022] UKUT 220 (IAC) (19 July 2022) is of similar effect in relation to an individual who had been in a cohabitating relationship with an EU national since February 2020  but had failed to marry by 31 December 2020 nor in the alternative, relevant to current similar circumstances, submitted an application as an extended family member(durable partner) by that date. Celik concluded as follows in dismissing that Appellant’s appeal:

“48.The appellant is not a family member to whom Part 2 of the Withdrawal Agreement applies. He was not a person who, in the words of Article 10.1(e)(i), resided in the United Kingdom in accordance with Union law before 11pm on 31 December 2020 and who continues to reside here afterwards. Nor does he fall within the scope of Article 10.1(e)(ii) or (iii).

52.There can be no doubt that the appellant’s residence in the United Kingdom was not facilitated by the respondent before 11pm on 31 December 2020. It was not enough that the appellant may, by that time, have been in a durable relationship with the person whom he married in 2021. Unlike spouses of EU citizens, extended family members enjoyed no right, as such, of residence under the EU free movement legislation. The rights of extended family members arose only upon their residence being facilitated by the respondent, as evidenced by the issue of a residence permit, registration certificate or a residence card: regulation 7(3) and regulation 7(5) of the 2016 Regulations.

53.If the appellant had applied for facilitation of entry and residence before the end of the transition period, Article 10.3 would have brought him within the scope of that Article, provided that such residence was being facilitated by the respondent “in accordance with … national legislation thereafter”. This is not, however, the position. For an application to have been validly made in this regard, it needed to have been made in accordance with regulation 21 of the 2016 Regulations. That required an application to be submitted online, using the relevant pages of http://www.gov.uk, by post or in person, using the relevant application form specified by the respondent; and accompanied by the applicable fee.

54.After 30 June 2021, a favourable decision of the respondent by reference to a pre-31 December 2020 application, results in a grant of leave under the EUSS, rather than a grant of residence documentation under the 2016 Regulations

55.As we have seen, the appellant made no such application.

56.The above analysis is destructive of the appellant’s ability to rely on the substance of Article 18.1. He has no right to call upon the respondent to provide him with a document evidencing his “new residence status” arising from the Withdrawal Agreement because that Agreement gives him no such status. He is not within the terms of Article 10 and so cannot show that he is a family member for the purposes of Article 18 or some other person residing in the United Kingdom in accordance with the conditions set out in Title II of Part 2.

57.The appellant’s attempt to rely on his 2021 marriage to an EU citizen is misconceived. EU rights of free movement ended at 11pm on 31 December 2020, so far as the United Kingdom and the present EU Member States are concerned. The Withdrawal Agreement identifies large and important classes of persons whose positions in the host State are protected, following the end of the transition period. The appellant, however, does not fall within any such class.

64.In the present case, there was no dispute as to the relevant facts. The appellant’s residence as a durable partner was not facilitated by the respondent before the end of the transitional period. He did not apply for such facilitation before the end of that period. As a result, and to reiterate, he could not bring himself within the substance of Article 18.1.”

 

Unduly harsh test is met: FTT Judge allows appeal of a potential deportee he describes as a “ persistent, prolific offender, an unreformed offender”

The First Tier Tribunal Judge had two options in this appeal– to allow the Appellant’s appeal despite his criminal record and high likelihood of further offending or his family (and essentially his children) having to remain in the UK without their father.

A history of offending spanning over nearly 20years:

ZY entered the UK in 2002 from Zimbabwe on a visit visa valid for 6months. He remained in the UK without leave to remain however over the yeas sought unsuccessfully to advance an application for asylum including several human rights claims.

As regards ZY’s lengthy history  of offending, in summary, the following applies:

Between 2003 and 2011, ZY amassed several convictions for almost each year(bar 2005 and 2006).The convictions related to mostly driving offences but including convictions for assault and fraud.

Excluding the years 2015, 2016 and 2018, between 2012 and 2019, ZY continued to accrue criminal convictions.

Whilst an application to revoke the deportation order submitted in 2019 was pending to be decided and then with the period between 2020 and 2022 relating to the waiting period during which his appeal against the refusal of the human right application was pending to be heard, he had been in and out of prison twice.

At the time of his human rights appeal hearing in January 2022, ZY was on bail for an offence of driving while disqualified alleged to have been committed  in 2021. He was next due to appear at a Magistrates’ Court in March 2022.

Despite there being no conviction related to the alleged offence of 2021, at the time his appeal was heard in 2022, I encouraged ZY to prepare a supplementary statement so as to clarify the position to the Tribunal. Had he not done so, the Home Office Presenting Officer would almost certainly have brought up the issues on the day of the hearing.

Qualifying children:

ZY lives in the UK with his three British children  were born between 2007 and 2016 in the UK. He lives with the mother of his children, a Zimbabwean national who holds refugee status on a permanent basis.

A summary of the basis of the refusal decision:

The core parts of the refusal decision of 2020 included the following:

  • It was accepted ZY had a genuine and subsisting parental relationship with his children
  • The children’s best interests were however outweighed by the desirability of deporting foreign criminals. The children’s mother could provide suitable care for the children in ZY’s absence
  • It would not be ‘unduly harsh’ for his children if ZY was deported
  • The children would continue to have the advantage of the education, health and support services provided in the UK
  • ZY had extended family in the UK, who can help support the children
  • None of the children are financially reliant on ZY
  • Contact with the children would be maintained by modern means of communication
  • ZY did not meet the requirements for the exception to deportation on the basis of family life with his children
  • In relation to whether there were very compelling circumstances, there was a significant public interest in ZY’s deportation, given his criminal history and a deportation order was signed in 2011.

What was argued on behalf of ZY:

Submissions were as follows before the Tribunal Judge:

  • It was recognised the high degree of public interest in ZY’s deportation.
  • It was acknowledged that little reliance could be placed on ZY’s evidence.
  • It was only the effect that his deportation might have on others that could be weighed in the balance. In a case with two bad outcomes, the balance might just be in ZY’s favour.
  • Pointed out were the difficulties that ZY’s partner had in managing the children during ZY’s absence.
  • However imperfect he might be, ZY was part of the structure that kept the family together.
  • That was the background, against which the Independent Social Worker’s report must be viewed. That report had identified the negative impact of his incarceration on the family. Although the appellant may not merit any sympathy, his children do.
  • It was acknowledged that the risk of the appellant reoffending was high, but prayed in aid was the effect ZY’s deportation would have on his children as the only realistic ground he could have for avoiding deportation.

The Judge ‘s views in relation to ZY’s offending:

The Judge made the following stinging observations regarding ZY’s offending:

  • It was important to analyse ZY’s behaviour to identify the strength of the public interest in his deportation. It was apparent from the recitation of his criminal history, that he falls within the definition of ‘foreign criminal’ (section 117D(2) of the 2002 Act) because he is not a British citizen; has been convicted in the UK of an offence; and has been sentenced to a term of imprisonment of at least 12 months. That he is a ‘persistent offender’ is also plain.
  • ZY’s offending history largely speaks for itself, but in assessing the level of public interest in the appellant’s deportation, ZY was not just a persistent offender, he was prolific.
  • Not only did his offending continue, it escalated to serious sophisticated frauds.
  • Despite continuing to offend, ZY made the current application to revoke the deportation order in 2019.
  • The appellant’s attitude to offending and public safety is apparent from the criminal record. He is a prolific offender. He has serious offences involving sophisticated frauds, committed over many years; he has countless offences of driving while disqualified and with excess alcohol; he has an offence of assault. He has been sentenced to terms of imprisonment, immediate and suspended, community sentences, and an alcohol rehabilitation course. Nothing within the criminal justice setting has stopped him offending and re-offending.
  • It might be expected that involvement in immigration proceedings would encourage ZY to cease offending, knowing how continuing to offend was likely to be viewed by the Secretary of State and the Tribunals. It has not.
  • He has for many years been involved in immigration appeals while simultaneously profusely offending.
  • Factors that would very often end offending behaviour, such as an enduring relationship and family commitments have left the rate of offending unabated.
  • He has committed serious, sophisticated offences of fraud. He has not addressed those at all.
  • He totally disregards road traffic legislation, committing serious offences with the potential for great harm.
  • The 2020 OASYS report puts the risk of re-offending as high, and the risk of serious harm as medium. The report was accurate in its assessment of the likelihood of further offending, in that he again drove while disqualified in 2020.
  • Nothing about ZY’s circumstances or evidence suggested that he will not re-offend.
  • His criminal history, serious and persistent offending and high likelihood of further offending, made the public interest in his removal high.

Consideration of the Independent Social Worker’s Report:

An independent social worker’s report was obtained in 2020 following the refusal of the claim based on application to revoke the deportation order of 2011. In light of the Covid-19 pandemic, the appeal went unheard for nearly 2years. In January 2022, just before his appeal was heard, a second independent social worker report was commissioned, updating on the current circumstances in relation to the children.

The Judge noted the following:

  • There were significant events in the family’s life during the course of the proceedings, however the Judge had his starting point a Report of 2020 by an independent social worker.
  • The children were achieving milestones, enjoying school and performing well academically. The Report described a household in which all relationships were strong, appropriate and loving. Because at that time his Partner was working night shifts, ZY took the major caring role for their children during the day, including attending school events.
  • The Report confirmed that if ZY were permanently removed, his Partner would have to take on the caring role for the children and could not work. The Report also described the negative impacts reported on the children when ZY was absent for relatively short periods of time when serving a prison sentence. The Report identified that the children have no contact or familiarity with life in Zimbabwe, and it would not be practical for them to relocate there. The Report concluded that the best interests of the children were to remain together with both parents in the UK, and that ‘these children’s wellbeing will be negatively affected by their father’s long-term absence’.
  • The Judge noted that the Independent Social Worker is not required to address the issue whether it would be ‘unduly harsh’ for the family were ZY to be deported in light of his criminal record.
  • The Independent Social Worker was noted to have completed an updated independent report in January 2022. She again determined that the children’s best interests were to remain with both parents in the UK. The report was not required to address whether deportation is ‘unduly harsh’.

Why ZY’s appeal was allowed:

In allowing ZY’s appeal the Judge considered and found as follows:

  • Whether the decision to deport ZY would have unduly harsh consequences in terms of exception 2 depended in large part on the likely effect of removal. In making his findings on that aspect of the case, the noted that ZY was an unreliable witness: he presented himself in what he believed to be the best light at any point.
  • No reliance at all was placed on his evidence of reform or intention to give up a criminal lifestyle.
  • In assessing the effect of ZY’s removal on his children, the Judge took account of the most recent report by the Independent Social Worker Report( aspects of her report were quoted at length).
  • The Judge noted that he had identified the high degree of public interest in ZY’s deportation. He is a persistent, prolific offender; an unreformed offender; an offender who has been sentenced to between one and four years imprisonment.
  • That public interest in ZY’s deportation can be outweighed if he could show, on the balance of probabilities, that his removal would have unduly harsh consequences for his partner and/or children with whom he has a genuine and subsisting relationship: section 1175C of the 2002 Act.
  • Were he to be deported, that would effectively end the relationship with his children.
  • The Judge considered the effect of ZY’s deportation on his partner’s ability to care for the children, and for that reason alone took account of the effect of his deportation on her.
  • The issue was whether it would be ‘unduly harsh’ on the appellant’s children to remain in the United Kingdom if he were to be deported. The Judge took account of the best interests of the children, as required by section 55 of the Borders, Citizenship and Immigration Act 2009. All the children were British nationals, and that carried weight.
  • The refusal decision acknowledged that the children would not return to Zimbabwe with the appellant, so that were he to be deported his ties with his children would be, at best, by electronic means and occasional visits.
  • The Independent Social Worker identified that it is in the best interests of the children for ZY to remain in the United Kingdom. That was undoubtedly true, and the refusal decision acknowledged that, but that is a common feature of deportation of foreign criminals with children. However, from the report and other evidence, the Judge noted that he had to consider whether it would be ‘unduly harsh’ on them.

In setting out further considerations leading him to allowing the appeal:

  • The Judge noted that all the reports to which he access, including reports that were prepared because there had been concerns about ZY and his Partner’s ability to parent the children appropriately, had concluded that they are competent, loving parents, providing a safe home environment for the children.
  • ZY’s partner had by and large been the breadwinner, and worked at night, ZY had taken on most of the domestic responsibilities for the care of his children, a role that he has undertaken successfully, despite his criminal proclivities.
  • Were ZY to be deported, neither his Partner nor the children would accompany him. They would be left in the UK in the care of their mother. While the Judge found that there was significant practical and financial support from within the UK for the family, that would not be the same as the constant support of their father.
  • There was no doubt that the children would find ZY’s deportation very difficult. They were close to him. They would miss him. They may not understand what has happened.
  • It was apparent that ZY’s partner had more recently had difficulties in caring for the children. While the effect of ZY’s deportation would not be unduly harsh on his partner personally, her ability to care for the children, and the likely effect on their wellbeing, was an important feature.
  • As set out in the Independent Social Worker’s report, if ZY were not be present and should his partner feel under greater strain, it was not inconceivable that this addition pressure may present a greater risk of her physical chastisement of the children.
  • As imperfect a role model as he is, ZY was a vital part of the children’s lives, and his deportation would cause them (who are not responsible for his criminality) undue hardship.
  • The Judge did not accept that ZY was ‘reformed’. He found it likely he will reoffend, and there will be consequences of such offending on his liberty, relationship with his family, and ability to avoid deportation. However, the Judge found that currently his deportation would cause ‘undue hardship’ for his children, and therefore that he had satisfied the statutory exception 1 to deportation.

Secretary of State’s application for permission to appeal to the Upper Tribunal fails:

ZY’ appeal was allowed nearly four months after his appeal was heard.

A decision allowing the appeal was notified in April 2022.

In April 2022, the Secretary of State applied to the First Tier Tribunal for permission to appeal to the Upper Tribunal.

In the first week of June 2022, the First Tier Tribunal refused the application for permission to appeal.

Nearly four weeks later, the Secretary of State has not applied to the Upper Tribunal for permission to appal the April 2022 decision.

Current position:

ZY was convicted of a driving offence in March 2022 following his hearing in the Tribunal. His appeal in the Tribunal was allowed in April 2022 whilst he was serving a sentence related to driving offences.

Following a successful application for immigration bail after completion of his sentence,  he now awaits the grant of his leave to remain whilst he continues to support his partner with their children.

 

 

Getting to grips with the new Appendix Private Life and Guidance: what you need to know

Paragraph 276ADE (1) of Part 7 of the Immigration Rules has been deleted. This Rule provided for the requirements to be met by an applicant for leave to remain on the grounds of private life.

Appendix Private Life and its accompanying new Guidance: Private life: caseworker guidance, came into force on 20 June 2022, replacing the previous Private Life provisions in Part 7 of the Immigration Rules.

Appendix Private Life applies to all applications for permission to stay made on the basis of Private Life in the UK on or after 20 June 2022.

The Private Life Guidance currently provides at page 5, “There is separate guidance for considering applications for settlement under Appendix Private Life”.

In relation to the transitional provisions, where a Home Office decision-maker is considering an application made before 20 June 2022, they are required to do so under the Rules in force on 19 June 2022, taken in combination with the previous casework guidance (Family life as a partner or parent, private life and exceptional circumstances version 16 and Concession to the family Immigration Rules for granting longer periods of leave and early indefinite leave to remain version 2).

APPENDIX PRIVATE LIFE- A SUMMARY

An application under the Private Life Route is required to meet the following requirements by reference to Appendix Private Life and its accompanying Guidance:

  • Validity
  • Suitability
  • Eligibility
  • Residence
  • Continuous residence
  • Qualifying period for settlement applications
  • English language (settlement applications only)
  • Knowledge of Life in the UK (settlement applications only)

In essence, the four broad categories that existed previously under the private life routes by reference to now deleted Paragraph 276ADE(1), have been largely carried over to Appendix Private Life( with  the introduction of five new categories set out at the end of the list immediately below):

  • “7year Rule” – permission to stay application, ie limited leave to remain
  • Young adults who meet the “half -life” test – permission to stay application
  • 20years continuous residence in the UK – permission to stay application
  • Less than 20years continuous residence in the UK and meeting the “very significant obstacles to re-integration” test – permission to stay application
  • Application for settlement by a child who was not born in the UK who has or last had permission to stay on the private life route as a child and who has lived in the UK for a continuous qualifying period of 5 years with permission granted pursuant to permitted routes which count towards the qualifying period
  • Application for settlement by a young adult who was not born in The UK who has or last had permission to stay on the private life route as a young adult who met the half-life test and who has lived in the UK for a continuous qualifying period of 5 years with permission granted pursuant to permitted routes which counts towards the qualifying period
  • Application for settlement by an applicant who was been born in the UK, is able to provide a full UK birth certificate, and has lived continuously in the UK since their birth for at least 7 years at the date of application and it is not reasonable to expect the applicant to leave the UK.
  • Application for permission to stay as a dependent child born in the UK to a person on the private life route
  • Permission to stay where there would be a breach of Article 8 of the ECHR on the basis of private life- i.e where the applicant does not meet some of the suitability requirements or does not meet any of the eligibility requirements for permissions to stay applications

In relation to grants of permission to stay, where it is the applicant’s first grant of permission on the private life route and they are a child (under 18 at the date of application) or a young person (aged between 18-24 at date of application and meet the half of life test), the applicant will be able to choose within the FLR(FP) application whether they should be granted 30 or 60 months leave. All other applicants granted permission on the private life route will be granted leave for 30months.

LONGER PERIODS OF LEAVE OR EARLY ILR – WHAT HAS HAPPENED TO THE CONCESSION INTRODUCED IN OCTOBER 2021?

 The Private Life Guidance provides clarifications, stating:

“In October 2021 a concession was introduced to grant young adults longer periods of leave and early indefinite leave to remain on the basis of private life. This concession allowed a person who had arrived in the UK as a child to qualify for settlement after 5 years if they had been granted leave on private life or family grounds and had completed 5 years after the age of 18 with such leave. This concession ended when it was incorporated into the Immigration Rules on 20 June 2022 along with the other changes set out in the Background section above”.

Whilst the Concession enabled grants of ILR to eligible young adults without the need to undertake the Life in the UK test or satisfy the English language requirement, Appendix Private life requires, subject to exemptions, these requirements to be met in relation to settlement applications.

WHAT IS THE PRIVATE LIFE ROUTE?

Private life, as enshrined in Article 8 of the ECHR, is a general right that is applied to cases in an individual way. It states:

8(1) Everyone has the right to respect for his private and family life, his home, and his correspondence.

8(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

  • The Home Office position is that Article 8 ECHR is a qualified right so as to allow countries to set requirements which properly balance the individual right to respect for private or family life with the public interest in safeguarding the economic well-being of the UK by controlling immigration, in protecting the public from foreign criminals and in protecting the rights and freedoms of others.
  • It is considered by the Home Office that the Private Life Immigration Rules express a policy on private life that is compatible with Article 8 ECHR on private life. In the event of an adverse decision and an appeal being considered, section 5A of the Nationality Immigration and Asylum Act 2002 is the primary legislation and is considered by the Home Office to be designed to produce in all cases a final result which is compatible with Article 8 ECHR, including in those cases where the requirements of the Immigration Rules may not have been met.

Appendix Private Life itself provides:

Immigration Rules Appendix Private Life

The Private Life route is for a person seeking permission to stay in the UK on the basis they have developed a Private Life in the UK…….The Private Life route is a route to settlement”.

APPLICATION PROCEDURE-VALIDITY REQUIREMENTS FOR PERMISSION TO STAY APPLICATIONS

Validity requirements for permission to stay(leave to remain):

Appendix Private Life states:

“Validity requirements for the Private Life Route

PL 1.1. A person applying for permission to stay on the Private Life route must apply online on the gov.uk website on the specified form: “Application to remain in the UK on the basis of family life or private life”.

PL 1.2. An application for permission to stay on the Private Life route must meet all the following validity requirements:

(a) any fee and Immigration Health Charge must have been paid (unless the applicant has been granted a fee waiver in whole or in part); and

(b) the applicant must have provided any required biometrics; and

(c) the applicant must have provided a passport or other document which satisfactorily establishes their identity and nationality; and

(d) the applicant must be in the UK on the date of application.

PL 1.3. If a private life claim is made under Article 8 of the Human Rights Convention and it is made:

(a) at the same time as a protection claim or further submission in person after a protection claim has been refused; or

(b) when the applicant is in detention (and the claim is submitted to a prison officer, custody officer or a member of Home Office staff at the place of detention); or

(c) during an appeal (subject to the consent of the Secretary of State where applicable), the requirements at PL 1.1. and at PL 1.2. (a) and (c) will be waived.

PL 1.4. An application which does not meet all the validity requirements for the Private Life route is invalid and may be rejected and not considered”.

  • Information on validity and the process for considering whether to reject an invalid application can be found in the Validation, variation and withdrawal of applications guidance.
  • If the application does not meet all of the validity requirements set out in paragraphs PL 1.1. and PL 1.2. the application is invalid and may be rejected and not considered. This does not apply when considering certain Article 8 claims that do not require a valid application.
  • If the application meets all of the validity requirements, or the Home Office have otherwise decided to accept the application as valid, the next stage in consideration will be whether it meets the suitability and eligibility requirements for permission to stay.

SUITABLITY REQUIREMENTS

Applicants seeking permission to stay on private life grounds can be refused for specified suitability reasons. The majority of suitability reasons are set out in Appendix FM because private life and family life both come within the scope of Article 8 ECHR. There is one suitability ground in Part 9 in relation to refusal based on sham marriage.

The Private Life rules state that the applicant must not fall for refusal under the suitability grounds for refusal as set out in the relevant rules in Appendix FM or Part 9. The Home Office will consider the application against those rules and come to a decision on whether it falls to be refused under them.

Before a Home Office decision-maker grants permission to stay on the private life route, they are required to check the applicant is suitable. The suitability requirements for:

  • applicants are set out in paragraphs PL 2.1. and PL 2.2. of Appendix Private Life
  • dependent children born in the UK to a person on the Private Life route are set out in paragraphs PL 20.1. and PL 20.2 of Appendix Private Life

To meet paragraph PL 2.1. or paragraph PL 20.1., the applicant must not fall for refusal under any of the grounds for refusal in paragraphs SLTR.1.2. to S-LTR.2.2. and S-LTR.3.1. to S-LTR.4.5. of Appendix FM.

The suitability requirements in Appendix FM fall into 3 categories:

  • mandatory requirements – the application must be refused if any of paragraphs S-LTR.1.2. to S-LTR.1.8 apply
  • non-mandatory requirements – the application will normally be refused if paragraph S-LTR.2.2. applies
  • discretionary suitability grounds – the application may be refused if any of paragraphs S-LTR.4.2. to S-LTR.4.5. apply

To meet paragraph PL 2.2. or PL 20.2., the applicant should not fall for refusal under paragraph 9.6.1. of Part 9: grounds for refusal on the basis of a sham marriage or civil partnership.

When considering the suitability requirements in Appendix FM and Part 9 of the Immigration Rules, the Home Office decision-maker will refer to the following guidance:

  • S-LTR.1.2.: Criminality in ECHR cases guidance
  • S-LTR.1.3., S-LTR.1.4.: Criminality guidance
  • S-LTR.1.5., S-LTR.1.6, S-LTR.1.8.: Suitability: non-conducive grounds for refusal or cancellation of entry clearance or permission guidance
  • S-LTR.1.7.: Suitability: failure to provide required information, attend interview
  • S-LTR.2.2., S-LTR.4.2., S-LTR.4.3.: Suitability: false representations
  • S-LTR.4.4.: Suitability: unpaid litigation costs
  • S-LTR.4.5.: Suitability: debt to the NHS
  • Para 9.6.1.: Suitability: sham marriage or civil partnership

If the applicant does not meet all the suitability and eligibility requirements and refusal would not breach Article 8 of the Human Rights Convention, the application on the private life route will be refused.

THE “7YEAR RULE”

Residence requirements and periods of grant of permission to stay- “7 Year Rule”:

Appendix Private Life provides:

“Eligibility requirements on the Private Life Route

Residence requirements for a child on the Private Life route

PL 3.1. Where the applicant is aged under 18 at the date of application the following requirements must be met:

(a) the applicant must have been continuously resident in the UK for at least 7 years; and

(b) the decision maker must be satisfied that it would not be reasonable to expect the applicant to leave the UK”.

………………

“Period and conditions of grant of permission to stay on the Private Life route

PL 10.1. If the applicant is under 18 at the date of application (or was under 18 when first granted permission on the private life route), they will be granted permission to stay for either:

(a) 30 months, where the applicant has applied for a period of 30 months; or

(b) 60 months, where the applicant has applied for a period of 60 months”.

The Private Life Guidance states at pages 9 to 10 and 17 to 18:

  • A child who has been resident in the UK for 7 years may be considered under the private life rules if applying on their own or if applying as part of a family group. In all family applications, Home Office decision- makers are required to check whether any children included in the application have been resident in the UK for 7 years. If so, the Home Office will firstly need to consider whether the child meets the continuous residence requirements under the private life rules and if so, that it is not reasonable for the child to leave the UK.
  • If a child meets the requirements of the private life rules and their parent(s) meet the family rules in Appendix FM, the child could also fall for a grant of permission under Appendix FM as a dependent child (if they meet all other requirements). Where a child meets both Appendix Private Life and Appendix FM, they should be granted under Appendix Private Life as this gives the child the most favourable grant of leave and allows a shorter route to settlement. This may on occasion result in a child being granted a different length of leave and different duration to settlement than their parent(s) or other family members.
  • To meet the residency requirements, the child must be under 18 years old and have been continuously resident in the UK for 7 years on the date of application.
  • A person applying for an extension of permission on the private life route who was initially granted permission under either Appendix private life or paragraph 276ADE in Part 7 may no longer be under 18 at the date of application for an extension. The applicant will be eligible to extend their permission to stay under PL 10.1 if they were initially granted as a person who was under 18 years old with 7 years residency when first granted permission to stay on the private life route.

The Reasonable test:

In relation to the Reasonable test, the Private life Guidance states:

  • If the child meets the residence requirements, the decision-maker will consider whether it is reasonable to expect the child to leave the UK. Considered will be all the information provided by the applicant, together with any other relevant information that is available.

As regards assessing whether it is reasonable to expect a child to leave the UK, the Guidance states:

  • The reasonable assessment must take place in every case where the child has shown continuous residence for 7 years as a child. This is consistent with the approach taken by the Court of Appeal in the case of AB Jamaica – Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661.
  • The assessment must look at what is reasonable based on the child’s current circumstances. This refers to the present state of affairs and not to the future. The starting point is that the Home Office would not normally expect a qualifying child to leave the UK. The assessment must be specific to the child’s situation.

The Home Office decision-maker must consider:

  • the age of the child
  • whether the child has ties to the UK including relationships with other family and friends whose lives are established in the UK
  • who the child would be expected to leave the UK with – it is normally in the best interests of the child for the family to remain together
  • whether they have family and friends in their country of return
  • whether they have ever visited the country of return, for how long and when

A grant of permission to stay to a child on private life grounds does not mean any parental permission to stay will be of the same duration.

Useful caselaw is: KO (Nigeria) and Others v Secretary of State for the Home Department [2018] UKSC 53. In this case the Supreme Court found that ‘reasonableness’ is to be considered in the real-world context in which the child finds themselves. And so, if the circumstances of a child’s parents are that both are going to leave the UK, it is reasonable for the child to be treated as likely to leave with them, unless there is a reasonable basis, supported by evidence, for not taking that view.

Settlement under the “7year Rule”:

Appendix Private Life states as follows in relation to the qualifying period requirement for settlement for an applicant who has had permission to stay on the private life route as a child.

“Qualifying period for settlement on the Private Life route( where the applicant was not born in the UK)

PL 14.1. An applicant who has, or last had, permission to stay on the private life route as a child……. must have lived in the UK for a continuous qualifying period of 5 years with permission as set out in PL 14.3 or 14.4.”

YOUNG ADULTS AND MEETING THE HALF- LIFE TEST

Residence requirements and periods of grant of permission to stay- young adults:

“Eligibility requirements on the Private Life route

..

Residence requirements for a young adult on the Private Life route (where the applicant arrived in the UK as a child)

PL 4.1. Where the applicant is aged 18 or over and aged under 25 at the date of application and arrived in the UK before the age of 18, the applicant must have spent at least half their life continuously resident in the UK”.

….

Period and conditions of grant of permission to stay on the Private Life route

PL 10.2. If the applicant is a young adult who has spent half their life in the UK at the date of application (or was previously granted as a young adult on the private life route), they will be granted permission to stay for either:

(a) 30 months, where the applicant has applied for a period of 30 months; or

(b) 60 months, where the applicant has applied for a period of 60 months”.

The Private life Guidance states at pages 18 to 19 as regards the residence requirements for a young adult:

  • An applicant aged 18 years or over and under 25 years must have arrived in the UK as a child and have lived continuously in the UK for at least half their life at the date of application.
  • The rationale for the half of life test is that the greater the proportion of a child or young person’s life has been spent in the UK, the more likely it is that the child or young person can be said to have established their own private life in the UK. Under these rules if the residence requirement is not met as set out, then paragraph PL 8.1. of Appendix Private Life requires an Article 8 consideration to take place.
  • A person applying for an extension of permission on the private life route who was initially granted permission under either Appendix Private Life or paragraph 276ADE in Part 7 may no longer be in the young person age bracket (for example, they may be 25 or over) at the date of application. The applicant will be eligible to extend their permission to stay under PL 10.2 if they were initially granted as a person who was 18 or over but under 25 years old and met the half of life test when first granted permission to stay on the private life route.
  • Those individuals who arrived as children and are applying over the age of 18, but do not meet the requirement of having lived in the UK for at least half of their life may still qualify. They may wish to apply as an adult who has lived continuously in the UK for less than 20 years and will need to demonstrate there would be very significant obstacles to their integration into the country where they would have to live if required to leave the UK. They will not be eligible though if they have lodged a protection or asylum claim which has been declared inadmissible.

CHILDREN AND YOUNG ADULTS- CHOICE OF GRANT OF 30 OR 60 MONTHS LEAVE

Private Life Guidance states at pages 32 to 34:

  • If this is the applicant’s first grant of permission on the private life route and they are a child (under 18 at the date of application) or a young person (aged between 18-24 at date of application and meets the half of life test) the applicant will be able to choose whether they have 30 or 60 months leave( within the FLR(FP) online application form).
  • An applicant who was initially granted permission as a child or young person either under Appendix Private Life or under paragraphs 276BE(1) or 276BE(2) of Part 7 and is extending their permission to stay will also be able to choose whether they are granted 30 or 60 months leave. As the applicant is extending their leave, they may no longer be a child (for example, they may be over 18) or young person (for example, they may be over 25) at the date of application but they must have met the relevant age criteria when they were first granted leave on the private life route.
  • The Home Office will check what length of leave the applicant has requested on the application form and that the applicant is entitled to choose their leave.

As regards payment of the Immigration Health Surcharge, the Guidance states:

  • Children and young people who meet the half of life test have a choice on the duration of leave granted. They can choose either 30 or 60 months leave. The applicant will have self-identified as part of the application process whether they are currently a child or young person or were a child a young person when first granted leave on the basis of their private life. The cost of an application under the private life rules is the same irrespective of the length of permission required but the cost of the immigration health surcharge is different based on the length of leave requested. The applicant will have paid the relevant immigration health surcharge cost at point of application.
  • Only children and young people are entitled to choose the duration of leave under the private life rules. The Immigration Health Charge portal will allow any applicant in the UK applying on the private or family life routes to select the duration of their leave.
  • If the applicant has requested 60 months leave but they are not entitled (as they are not a child or young person who met the half of life test or were not a child or young person who met the half of life test when first granted leave on the private life route), they are entitled to a refund of a proportion of the immigration health surcharge. The applicant only needs to pay the Immigration Health Charge for the period of leave they are granted.
  • If a child or young person has selected that they would like 60 months leave on the application form but has only paid the immigration health surcharge fee for 30months, the Home Office decision-maker will write out to ask the applicant to make an immigration health surcharge top-up payment within 2 weeks in order to be granted 60 months. If they do not make the payment within the 2 weeks, they should be granted 30 months leave.
  • Family life applicants pay the immigration surcharge (or are given a fee waiver) for 30 months permission to stay. If a child is to be granted leave on the private life route, the decision-maker will write out to inform the applicant that they are eligible for 60 months and ask them for an immigration health surcharge top-up payment in order to be granted 60 months. If they do not make the payment within the 2 weeks, they should be granted 30 months leave.

Settlement for young adults:

Appendix Private Life provides as follows in relation to a young adult meeting the qualifying period requirement for settlement:

“Qualifying period requirement for settlement on the Private Life route(where the applicant was not born in the UK)

PL 14.1. An applicant who has, or last had, permission to stay on the private life route as a ……young adult who met the half-life test under PL 4.1, must have lived in the UK for a continuous qualifying period of 5 years with permission as set out in PL 14.3 or 14.4”.

THE 20YEAR RULE AND LESS THAN 20YEARS RESIDENCE REQUIREMENTS

Residence requirements and periods of grant of permission to stay-20year Rule and less than 20years residence:

Appendix Private Life states:

“Eligibility requirements on the Private Life route

……………

Residence requirements for an adult on the Private Life route (including a young adult who does not qualify under PL 4.1.)

PL 5.1. Where the applicant is aged 18 or over on the date of application:

(a) the applicant must have been continuously resident in the UK for more than 20 years; or

(b) where the applicant has not been continuously resident in the UK for more than 20 years, the decision maker must be satisfied there would be very significant obstacles to the applicant’s integration into the country where they would have to live if required to leave the UK”.

………..

“Period and conditions of grant of permission to stay on the Private Life route

…………

PL 10.3. In all other cases the applicant will be granted 30 months permission to stay”.

Adults granted permission to stay under the private life rules can settle after 10 years continuous residence and permission will initially be granted for 30 months.

  • The Private Life Guidance provides at pages 20 to 23:
  • An applicant over 18 years of age, who does not meet the half-life test, must have lived continuously in the UK for at least 20 years at the date of application.
  • Where an adult applicant has been resident in the UK for less than 20 years (and is not a young adult who meets the half of life test) there must be very significant obstacles to the applicant’s integration into the country where they would have to live if required to leave the UK in order for them to qualify under the private life route.

If the applicant is over 18 but arrived in the UK as a child (and does not meet the half of life in the UK test) then an assessment of whether there are very significant obstacles to integration in the country in which they might have to live if required to leave the UK will be necessary. In these cases, the Home Office will consider if the individual has lived in that country as an adult which will mean spending a period of employment or study in that country, or other activities consistent with living there as an adult.

Settlement: 20year rule or less than 20years residence:

Appendix Private Life states:

Qualifying period requirement for settlement on the Private Life route (where the applicant was not born in the UK)

……………

PL 14.2. An applicant who is aged 18 or over at the date of application and does not meet the requirement in PL 14.1 must have lived in the UK for a continuous qualifying period of 10 years with permission set out in PL 14.3. or 14.4”.

CONDITIONS ATTACHED TO PERIODS OF PERMISSION TO STAY

Conditions of grant of permission to stay:

Appendix Private Life states:

“Period and conditions of grant of permission to stay on the Private Life route

……………….

“PL 10.5. The grant of permission will be subject to the following conditions:

(a) work (including self-employment and voluntary work) permitted; and

(b) study is permitted, subject to the ATAS condition in Appendix ATAS; and

(c) if the decision maker is satisfied that:

(i) the applicant is destitute, as defined in section 95 of the Immigration and Asylum Act 1999, or is at risk of imminent destitution; or

(ii) there are reasons relating to the welfare of a relevant child which outweigh the considerations for imposing or maintaining the condition (treating the best interests of the relevant child as a primary consideration), the applicant will not be subject to a condition of no access to public funds. If the decision maker is not so satisfied, the applicant will be subject to a condition of no access to public funds; and

(d) if Part 10 of these rules applies, the applicant will be required to register with the police.

PL 10.6. For the purposes of PL 10.5.(c)(ii) ‘relevant child’ means a person who:

(a) is under the age of 18 years at the date of application; and

(b) it is clear from the information provided by the applicant, is a child who would be affected by a decision to impose or maintain the no access to public funds condition.”

  • Persons granted permission to stay on the basis of private life can take any kind of employment or self-employment. The work can be full-time or part-time, paid, or unpaid and they do not need any additional permission or endorsement from the Home Office to work.
  • Subject to the ATAS condition below, persons granted permission to stay on the basis of private life are allowed to study in the UK. There is no limit on the number of hours they can study or level of course they can do.
  • If the person intends to study a discipline listed in Immigration Rules: Appendix ATAS and they are not a national of an exempt country, they must obtain an Academic Technology Approval Scheme (ATAS) clearance certificate from the Counter-Proliferation and Arms Control Centre of the Foreign, Commonwealth and Development Office in relation to this course before beginning their study.
  • If the applicant has provided the Home Office satisfactory evidence they are destitute or at risk of imminent destitution, or satisfactory evidence that there are reasons relating to the welfare of a relevant child, or satisfactory evidence that there are exceptional circumstances relating to the applicant’s financial circumstances which requires the Home Office decision-maker not to impose a condition of no recourse to public funds, the applicant can be granted access to public funds. Otherwise, permission to stay is granted with no access to public funds.
  • A person who is granted permission to stay on the basis of private life may be required to register with the police if required under Part 10 of the Immigration Rules – the Police registration guidance provides further information.

CONSIDERATIONS OUTSIDE THE IMMIGRATION RULES- ARTICLE 8 OF THE ECHR ON PRIVATE LIFE

Appendix Private Life states:

“Eligibility requirement for Private Life route relying on Article 8 of the Human Rights Convention

PL 8.1. If the applicant does not meet the suitability requirements (subject to PL 8.2) or does not meet any of the eligibility requirements in PL 3.1., PL 4.1. or PL 5.1. the decision maker must be satisfied that refusal of permission to stay would breach Article 8 of the Human Rights Convention on the basis of private life.

PL 8.2. Where PL 8.1. applies and the applicant falls for refusal under suitability paragraphs S-LTR.1.2., S-LTR.1.3., S-LTR.1.4., S-LTR.1.5., S-LTR.1.6 or S-LTR 1.8. of Appendix FM of these rules the application on the Private Life route will be refused”.

The Private Life Guidance states at pages 27 to 31:

  • If the applicant does not meet the suitability requirements (see Grounds for refusal – suitability) or the eligibility requirements for a child, young person or adult, the Home Office will consider whether refusal would breach Article 8 (the right to respect for private and family life) of the ECHR on the basis of private life.
  • In conducting this assessment, regard will be given to all of the information and evidence provided by the applicant. The Home Office are required take into account, as a primary consideration, the best interests of a relevant child.
  • The Home Office will consider whether refusal would result in a harsh outcome(s) for the applicant, which is not justified by the public interest, including in maintaining effective immigration controls, preventing burdens on the taxpayer, promoting integration, and protecting the public and the rights and freedoms of others.
  • The impact on the applicant if the application is refused is required to be considered and an assessment made as to whether this produces an unduly harsh outcome when the factors are taken into account. It is expected that an individual applying on their own under the Private Life rules will be assessed on that basis without wishing for the impact on family life or family members to be taken into account.
  • If family members are included in the application, then the other family members must be taken into account and the application considered so as to produce the same result as if considered under GEN.3.2. of Appendix FM.
  • Cumulative factors will be considered. Cumulative factors weighing in favour of the applicant should be balanced against cumulative factors weighing in the public interest in deciding whether refusal would breach Article 8 for the applicant.
  • The Home Office must take into account, as a primary consideration, the best interests of any ‘relevant child’. A ‘relevant child’ is a child in the UK or overseas, who is under the age of 18 years at the date of application, and who it is evident from the information provided by the applicant would be affected by a decision to refuse the application.
  • The Supreme Court determined, in ZH (Tanzania) [2011] UKSC 4, that the ‘best interests of the child’ broadly means their well-being and that in undertaking a proportionality assessment under Article 8 those best interests must be a primary consideration. However, they are not necessarily determinative, and they can be outweighed by public interest considerations. The Court also noted that while British citizenship is not a ‘trump card’, it is of particular importance in assessing the best interests of a child.
  • In FZ (Congo) [2013] UKSC 74, the Supreme Court said: “…The best interests of a child are an integral part of the proportionality assessment under Article 8 of the Convention; in making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child’s best interests do not of themselves have the status of paramount consideration…”.
  • In considering the best interests of a relevant child as a primary consideration within the Article 8 decision-making process, what matters is the substance of the attention given to the overall well-being of the child, not the specific order in which the elements of the consideration take place.
  • It is also essential that the child is not blamed for any failure by their parent or parents to comply with UK immigration controls. The conduct or immigration history of their non-British citizen parent or parents is relevant to the public interest analysis and must be given due weight in determining the overall proportionality of the decision under ECHR Article 8, but it does not affect the assessment of the child’s best interests or the need for those best interests to be taken into account as a primary consideration in the Article 8 decision.

In relation to the assessment of a child’s best interests, this requires a consideration of all relevant factors in the particular case. The Home Office decision-maker will consider:

  • the child’s length of residence in the UK
  • the family circumstances in which the child is living
  • the child’s relationships with their parent or parents overseas and in the UK
  • how long the child has been in education and what stage their education has reached
  • the child’s health
  • the child’s connection with the country outside the UK in which their parents are, or one of their parents is, currently living or where the child is likely to live if their parents leave the UK
  • the extent to which the decision will interfere with, or impact on, the child’s family or private life
  • whether (and, if so, to what extent) the child will have linguistic, medical, or other difficulties in adapting to life in that country
  • whether there are any factors affecting the child’s well-being which can only be alleviated by the presence of the applicant in the UK what effective and material contribution the applicant’s presence in the UK would make to safeguarding and promoting the child’s well-being. Is this significant in nature?
  • support during or following a major medical procedure, especially if this is likely to lead to a permanent change in the child’s life.

The Private Life Guidance further provides at page 32:

  • If the applicant meets the suitability requirements of PL.8.2. and the eligibility requirements on residence, the applicant will be granted permission to stay.
  • If the applicant does not meet the suitability requirements at 9.6.1 of Part 9 S-LTR 1.7, S-LTR 2.2, S-LTR 3.1 to S-LTR 4.5 of Appendix FM or does not meet the eligibility requirements on residence but refusal would breach Article 8 under PL 8.1, the applicant will be granted permission to stay.
  • Children and young people being granted permission on the private life route following a private life claim for which no application was required, will be granted leave for 60-months. Children and young people will be on a 5-year route to settlement.

VALIDITY REQUIREMENTS- SETTLEMENT APPLICATIONS

Appendix Private Life states:

“Validity requirements for settlement on the Private Life route

PL 11.1. A person on the Private Life route who is applying for settlement must apply online on the gov.uk website on the specified form as follows:

Adult (aged 18 or over) Settlement on the private life route
Child (aged under 18) Settlement as a child (including a child aged over 18 already in the UK as a dependent)

PL 11.2. An application for settlement must meet all the following requirements:

(a) any fee must have been paid; and

(b) the applicant must have provided any required biometrics; and

(c) the applicant must have provided a passport or other travel document which satisfactorily establishes their identity and nationality; and

(d) the applicant must be in the UK on the date of application.

PL 11.3. An applicant must have, or have last been granted, permission on the Private Life route, unless they are a child who was born in the UK.

PL 11.4. An application which does not meet all the validity requirements for settlement on the Private Life route is invalid and may be rejected and not considered”.

ROUTES COUNTING TOWARDS PERIODS OF SETTLEMENT

Routes counting towards the qualifying period of settlement:

Appendix Private Life states:

“PL 14.3. Permission on the following routes (or any combination of those routes) counts towards the qualifying period in PL 14.1. or PL 14.2:

(a) entry clearance or permission granted as a partner or parent under Appendix FM (except for permission as a fiancé(e) or proposed civil partner); or

(b) permission described in the Home Office grant letter as “family permission as a parent” or “family permission as a partner”; or

(c) permission on the private life route under paragraph 276ADE or 276BE(2) before 20 June 2022 or Appendix Private Life; or

(d) entry clearance or permission as a child of a person with limited leave as a partner or parent under Appendix FM; or

(e) permission granted outside the rules as a partner, a parent or child or because of private life on the basis of Article 8 of the Human Rights Convention.

PL 14.4. Permission on any other route that includes rules allowing an applicant to qualify for settlement also counts towards the qualifying period in PL 14.1. or PL 14.2, if the applicant:

(a) did not enter the UK illegally (unless they have permission to stay on the private life route as a child or young adult); and

(b) has had permission either under paragraph 276ADE or 276 BE(2) before 20 June 2022 or Appendix Private Life for at least one year at the date of application”.

7YEARS CONTINUOUS RESIDENCE: SETTLEMENT FOR CHILDREN BORN IN THE UK

Children born in the UK who have accrued 7years continuous residence:

Appendix Private Life states:

“Eligibility requirements for settlement on the Private Life route

Child born in the UK requirements for settlement on the Private life route

PL 13.1. The applicant must have been born in the UK and must provide a full UK birth certificate.

PL 13.2. The applicant must have lived continuously in the UK since their birth and for at least 7 years at the date of application.

PL 13.3. The decision maker must be satisfied that it is not reasonable to expect the applicant to leave the UK”.

A child born in the UK who has been continuously resident in the UK for at least 7 years is eligible to apply for immediate settlement on the basis of private life.

PRIVATE LIFE AND CONTINUOUS RESIDENCE

Continuous residence for limited leave

Appendix Private Life provides:

Continuous Residence requirements on the Private Life route

PL 7.1. The period of continuous residence at PL 3.1, PL 4.1. or PL 5.1. may include time spent in the UK with or without permission.

PL 7.2. The period of continuous residence at PL 3.1, PL 4.1. or PL 5.1. does not include any period during which the applicant was serving a sentence of imprisonment.

PL 7.3. The period of continuous residence at PL 3.1, PL 4.1. or PL 5.1 is broken (i.e. is no longer continuous) if any of the following apply:

(a) the applicant has been absent from the UK for more than 6 months at any one time; or

(b) the applicant has spent a total of 550 days or more absent from the UK during the period of continuous residence at PL 3.1, PL 4.1 or PL 5.1; or

(c) the applicant has been removed, deported or has left the UK having had an application for permission to enter or stay in the UK refused; or

(d) the applicant left the UK with no reasonable expectation at the time of leaving that they would lawfully be able to return”.

The Private Life Guidance states at pages 25 to 26:

  • Continuous residence for permission to stay on the private life route means time spent in the UK for an unbroken period and includes time spent in the UK with or without permission.
  • The Home Office will check when the applicant arrived in the UK and how long they have been living in the UK.
  • Time spent in prison will not be counted towards the period of continuous residence, but time before and after that imprisonment can be counted. The decision-maker will check to see whether the applicant has a criminal history and, if so whether they have been sentenced to a period of imprisonment.
  • The applicant is asked to list any absences in the Immigration History section of the application form. The Home Office will check the copy of the applicant’s documentation such as passport pages or travel documents for a record of absences to see if the evidence supports the information on the application form.
  • If the applicant has not listed all the dates of absence on the form but the passport evidence or other records to demonstrate they were absent, the decision-maker must ask for more information to clarify this discrepancy.
  • To demonstrate length of residence in the UK, applicants will be asked to provide documentary evidence as part of the application form.
  • There is no specified evidence to show continuous residence and a Home Office decision-maker cannot refuse an application for a lack of a particular document but must consider where they are overall satisfied that the applicant has been continually resident for the relevant period.
  • There is also no set number of documents required to show continuous residence and the evidence submitted will depend on the circumstances of the applicant.
  • The Home Office will consider the information on the application form and other available evidence before deciding whether they are satisfied that the continuous residence requirement is met. Official documentary evidence from official or independent sources, that shows ongoing contact over a period of time, will be given more weight in the decision-making process than evidence of one-off events.

The private life Guidance provides a non-exhaustive list of evidence that may be submitted by an applicant to show continuous residence in the UK. The list is not in order of importance:

  • tenancy agreement, mortgage agreement, letter from landlord, documents of ownership deeds or letter from housing trust
  • temporary work contracts or employment letters
  • letter from a local authority – contact with child or school placements
  • utility bills – council tax, electricity, gas, water etc
  • other bills – phone, TV licence, cable etc
  • other dated UK addressed domestic bills – for example, veterinary bills or home services/repairs
  • bank statements
  • study course documents
  • letters from school or charitable organisations

Although the burden of proof is on the applicant, if they have not yet provided sufficient evidence, the decision-maker is required to consider whether they should ask the applicant for further information, or they can seek to verify evidence before deciding the application.

If evidence is missing or inadequate, but the decision-maker does not need the information because they can get it elsewhere, for example, from a previous application, they do not need to contact the applicant.

If evidence is missing or inadequate but receiving it would make no difference to the decision (for example because they would still be refused for other reasons) the decision-maker does no need to contact the applicant.

If the evidence is missing or inadequate and the Home Office consider receiving it would make a difference to the decision, they should consider asking for further information or making verification checks. For example, the decision-maker may want to ask for evidence in the following situations:

  • evidence is missing that the Home Office believe the applicant has or could obtain
  • evidence is inadequate but could be clarified

The decision-maker may decide to ask for further information from the applicant or make verification checks. For more information, the Evidential flexibility guidance applies.

Continuous residence for settlement applications:

Appendix Private Life states:

“Continuous Residence requirement for settlement on the Private Life route

PL 15.1. The applicant must meet the continuous residence requirements as set out in Appendix Continuous Residence for the qualifying period for settlement”.

Appendix Continuous Residence applies only to certain types of applications including Appendix Private Life (settlement only).

Appendix Continuous Residence provides as follows as regards how the continuous residence requirement is met:

“CR 1.1. The continuous residence requirement is met if the applicant has spent the qualifying unbroken continuous residence period required by their route lawfully in the UK”.

Absences from the UK are dealt with between CR 2.1. and CR 2.5 of Appendix Continuous Residence, with CR 2.1. and CR 2.5, stating:

“CR 2.1. To meet the continuous residence requirement the applicant must not have been outside the UK for more than 180 days in any 12-month period (unless CR 2.2. or CR 2.3 applies).

……………….

“CR 2.5 Absences before 20 June 2022 will not be counted when calculating the continuous residence period for settlement applications under Appendix Settlement Family Life if the applicant was subsequently granted permission as a partner or parent under Appendix FM or under paragraph 276ADE or 276BE(2), following those absences”.

CR 4.1. sets out when an applicant’s continuous residence period will be broken.

CR 5.1. provides for when an applicant will not be regarded as lawfully present in the UK under CR 1.1.

CR 6.1. sets out how continuous residence periods in CR 2.1 and CR 2.2. will be calculated.

SETTLEMENT AND THE ENGLISH LANGUAGE REQUIREMENT

Appendix Family life states:

“English language requirement for settlement on the Private Life route

PL 16.1. Unless an exemption applies (for example where the applicant is aged under 18), the applicant must show English language ability on the Common European Page 180 of 202 Framework of Reference for Languages in speaking and listening to at least level B1.

PL 16.2. The applicant must show they meet the English language requirement as specified in Appendix English Language”.

SETTLEMENT AND KNOWLEDGE OF LIFE IN THE UK

Appendix Family life states:

Knowledge of life in the UK requirement for settlement on the Private Life route

PL17.1. Unless an exemption applies (for example where the applicant is aged under 18), the applicant must meet the Knowledge of Life in the UK requirement as specified in Appendix KOL UK”.

DEPENDANT CHILD BORN IN THE UK TO A PERSON ON THE PRIVATE LIFE ROUTE

Appendix Private Life and the Private Life guidance provide for consideration and assessment of an application for permission to stay as a dependent child born in the UK to a person on the private life route.

  • The validity requirements are set out in paragraphs PL 19.1. to PL 19.5. of Appendix Private Life.
  • The suitability requirements for dependent children born in the UK to a person on the Private Life route are set out in paragraphs PL 20.1. and PL 20.2 of Appendix Private Life.
  • The applicant is required to meet the relationship requirements in paragraphs PL 21.1. and PL 21.2.
  • If the applicant meets all of the suitability and eligibility requirements the applicant must be granted permission to stay.
  • The applicant will be granted permission to stay which ends on the same date as whichever of their parents’ permission ends first.
  • If the applicant’s other parent is a British citizen or a person who has a right to enter or stay in the UK without restriction and is or will be ordinarily resident in the UK, the applicant will be granted permission to stay which ends on the same date as the parent on the Private Life route.
  • If the applicant does not meet all the suitability and eligibility requirements, the application on the private life route will be refused. The applicant will not be considered against the main private life rules if falling for refusal as a dependent child born in the UK

 

Zambrano EUSS Primary Carers “New” Guidance: Akinsanya and Velaj

“The Home Secretary has carefully considered the Court of Appeal judgment and has decided that she no longer wishes that definition in Appendix EU to reflect the scope of the 2016 Regulations (which have now been revoked) but wishes it to reflect the scope of those who, by the end of the transition period, had an EU law right to reside in the UK as a Zambrano primary carer, in line with the originally stated policy intention. She therefore intends to maintain the requirement in sub-paragraph (b) of the definition that the applicant did not, by the end of the transition period and during the relevant period relied upon, have leave to enter or remain in the UK (unless this was under the EUSS).

This means applications will be considered under the existing Immigration Rules for the EUSS in Appendix EU. Applicants will be eligible for EUSS status in this category where, by the end of the transition period and during the relevant period relied upon, they met the relevant requirements of regulation 16 of the 2016 Regulations and did not have leave to enter or remain in the UK (unless this was under the EUSS).

From today, for a period of six weeks until 25 July 2022, people will be able to apply or re-apply to the EUSS as a ‘person with a Zambrano right to reside’ and be deemed to have reasonable grounds for having missed the deadline to apply, which was 30 June 2021.

Where a person applies after 25 July 2022, they will need to show there are reasonable grounds why they missed the 30 June 2021 deadline. You can find non-exhaustive examples of such grounds at www.gov.uk/settled-status-eu-citizens-families/eligibility”.

Following the Court of Appeal’s judgment in the case of R(Akinsanya) v Secretary of State for the Home Department [2022] EWCA Civ 37[2022] 2 WLR 681, the Home Office have now reconsidered the EU Settlement Scheme (EUSS) requirements for applicants relying on being a Zambrano primary carer and published their Guidance as above on 13 June 2022.

Akinsanya was previously considered in previous blog posts:

Akinsanya litigation: Court of Appeals decides Zambrano Primary Carers of British citizen children with limited leave are covered by the EEA Regulations – UK Immigration Justice Watch Blog

Primary Carers of British citizens: The Akinsanya litigation and persons with a Zambrano right to reside – UK Immigration Justice Watch Blog

Two weeks prior to publication of the “new” Guidance, the judgement of the Court of Appeal in Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767 (31 May 2022) was notified.

The judgement is considered here: https://ukimmigrationjusticewatch.com/2022/06/27/court-of-appeal-and-reg-165c-akinsanya-does-not-address-question-whether-the-british-citizen-dependant-would-be-unable-to-reside-in-the-uk/

In Velaj, the Court was clear that in Akinsanya, that Appellant’s case on Regulation 16 was entirely focused upon Regulation 16(7). Regulation 16(7) defines an “exempt person” for the purposes of Regulation 16(1)(a). The categories of exempt persons include British Citizens, and persons with Indefinite Leave to Remain (“ILR”). Akinsanya contended that persons with limited leave are not exempt persons and by virtue of paragraph 1(b) are entitled to a derivative right to reside, alongside their leave to remain.

Whether Ms Akinsanya could satisfy the criteria in Regulation 16(5) if she had leave to remain under some other provision of domestic law did not directly arise, and it was not something which the Court considered on her appeal.

As per paragraph 65 of Velaj:

“In Akinsanya this court was not required to consider, and did not consider, the requirements of Regulation 16(5) and how 16(5)(c) might be satisfied in practice by a primary carer who had limited leave to remain. The only issue it had to determine was whether Regulation 16(7) acted as a threshold barrier precluding someone like Ms Akinsanya from asserting that she had a derivative right of residence under Regulation 16(5) (or its predecessor) which had survived the subsequent grant to her of limited leave to remain”.

The Court in Velaj therefore in essence sought to interpret the phrases contained in Regulation 16(5)(c):

  • “unable to reside in the United Kingdom”
  • “If the person left the United Kingdom for an indefinite period”

The reasoning in Velaj requires consideration that even if Ms Akinsanya was able to convince the Court of Appeal that she was not an exempt person and so  entitled to a derivative right to reside alongside her leave to remain, the question would still remain: assumptions  aside and holding leave to remain under the Rules, whether in practice, her British citizen child would be unable to remain in the UK, or an EEA Member State or Switzerland, if she was in fact required to leave the UK for an indefinite period.

The Home Office would have been aware of the effect of Velaj when formulating their Guidance.

As matters stand, does the Secretary of State’s position as reflected in the Guidance of 13 June 2022 mean:

  • Individuals with leave to remain who applied as aperson with a Zambrano right to reside’ from June 2021 onwards are bound to have their applications refused?
  • There is no point applying as a ‘person with a Zambrano right to reside’ for those with leave to remain but yet to do so?

In light of the “new” Guidance, a person with leave to remain applying as a “person with a Zambrano right to reside” would face difficulty having regard to the Home Office’s main Guidance on Zambrano EUSS Carers:

“Initial eligibility requirements

To be considered eligible for indefinite leave to enter or remain or limited leave to enter or remain under Appendix EU as a ‘person with a Zambrano right to reside’ (or, as the case may be, in relying on past residence as such a person before moving into – and since remaining in – any, or any combination, of the other categories to which the definition of a ‘person who had a derivative or Zambrano right to reside’ refers), the applicant both:

  • must not be and for the relevant period have not been (or, as the case may be, for the relevant period they were not) an ‘exempt person’ under regulation 16(1)(a) of the EEA Regulations
  • must not have and for the relevant period must not have had (or, as the case may be, for the relevant period they did not have) leave to enter or remain in the UK granted, unless this was granted under Appendix EU

……………..

Leave to enter or remain in the UK, other than leave granted under Appendix EU

A Zambrano right to reside is only available to a person who has no other lawful basis of stay in the UK as the primary carer of a dependent British citizen, or as a dependant of that primary carer. In the case of Akinsanya v the Secretary of State for the Home Department (SSHD) [2022] EWCA Civ 37 (25 January 2022), the Court of Appeal found that, as a matter of EU law, a Zambrano right to reside does not arise where a person holds leave to remain, but that regulation 16(7) of the EEA Regulations did not exclude holders of limited leave to remain.

…………

To qualify as a ‘person with a Zambrano right to reside’ under Annex 1 to Appendix EU, the applicant must meet the requirements of that definition by the specified date (normally, 2300 GMT on 31 December 2020) and for the relevant period relied upon. This means in particular that they must not have held leave to enter or remain in the UK under another part of the Immigration Rules, or outside the Rules, at the specified date or for that period.

If the applicant does (or for the relevant period did) have leave to enter or remain in the UK, other than leave granted under Appendix EU, then you must, based on the information available to you, consider their eligibility for leave under the other eligibility requirements in rule EU11 (and, where relevant, EU12) and EU14 of Appendix EU, see: EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members.

If they do not meet any other eligibility requirements for leave under the scheme, then you must refuse the application under rule EU6, without going on to consider the other eligibility stages in this guidance”.

Affected individuals whose leave to remain was due to expire prior to receiving decisions on their outstanding Zambrano EUSS application would most likely have timely applied for further leave to remain. Those who are yet to do so, should seriously consider doing so.

Court of Appeal and Reg 16(5)(c): Akinsanya does not address question whether the British Citizen dependant would be unable to reside in the UK

The correct interpretation of Regulation 16(5)(c) of the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”), was in issue in Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767 (31 May 2022)

The two judgements of the Court of Appeal in Velaj and R(Akinsanya) v Secretary of State for the Home Department [2022] EWCA Civ 37[2022] 2 WLR 681 address different issues.

Relevantly, Regulation 16(5)(c), with which Velaj was concerned with, requires regard to be had to whether the relevant dependant British citizen would be unable to reside in the United Kingdom or in another EEA State if the primary carer left the United Kingdom for an indefinite period.

In Velaj, the Court was clear that in Akinsanya, that Appellant’s case on Regulation 16 was entirely focused upon Regulation 16(7). Regulation 16(7) defines an “exempt person” for the purposes of Regulation 16(1)(a). The categories of exempt persons include British Citizens, and persons with Indefinite Leave to Remain (“ILR”).   Akinsanya contended that persons with limited leave are not exempt persons and by virtue of paragraph 1(b) are entitled to a derivative right to reside, alongside their leave to remain.

Whether Ms Akinsanya could satisfy the criteria in Regulation 16(5) if she had leave to remain under some other provision of domestic law did not directly arise, and it was not something which the Court considered on her appeal.

As per paragraph 65 of Velaj:

“In Akinsanya this court was not required to consider, and did not consider, the requirements of Regulation 16(5) and how 16(5)(c) might be satisfied in practice by a primary carer who had limited leave to remain. The only issue it had to determine was whether Regulation 16(7) acted as a threshold barrier precluding someone like Ms Akinsanya from asserting that she had a derivative right of residence under Regulation 16(5) (or its predecessor) which had survived the subsequent grant to her of limited leave to remain”.

The Court in Valej therefore in essence sought to interpret the phrases contained in Regulation 16(5)(c):

  • “unable to reside in the United Kingdom”
  • “If the person left the United Kingdom for an indefinite period”

Summary Background:

The Appellant, a Kosovan national, subject to  deportation proceedings under s.32(5) of the UK Borders Act 2007, had his appeal allowed by the First Tier Tribunal(FTT) on the  basis his British son would be unable to reside in the UK or another EEA state if both his parents( the child’s British mother with whom the Appellant was in a relationship with) left the UK for an indefinite period and consequently the Appellant had a derivative right of residence under Regulation 16(5).

On the Secretary of State’s appeal, the Upper Tribunal set aside the decision of the FTT for a material error of law. Having concluded that the Appellant did not have a derivative right of residence, the Upper Tribunal re-made the decision on his appeal against the refusal of his human rights claim, accepted that Mrs Velaj would not go to live in Kosovo and found that it would not be reasonable to expect her to do so. The Upper Tribunal concluded that, although the effects of the Appellant’s deportation would be harsh on the family and indeed distressing, given the gravity of the Appellant’s offending it was nonetheless proportionate. The Appellant’s appeal was dismissed in the Upper Tribunal.

Provisions in issue:

Regulation 16 provides that a person has a derivative right to reside during any period in which the person is not an exempt person and satisfies each of the criteria in one or more of paragraphs (2) to (6).

Relevantly, Regulation 16(5) sets out that the criteria in the paragraph are that –

(a) the person is the primary carer of a British Citizen (“BC”)

(b) BC is residing in the United Kingdom; and

(c) BC would be unable to reside in the United Kingdom or in another EEA State if the person left the United Kingdom for an indefinite period

In Regulation 16(8), a person is the “primary carer” of another person (“AP”) if-

(a) the person is a direct relative or a legal guardian of AP and (b) either –

(i) the person has primary responsibility for AP’s care; or

(ii) shares equally the responsibility for AP’s care with one other person

Regulation 16(5) is concerned with the rights established by the decision of the Grand Chamber of the Court of Justice of the European Union (“CJEU”) in Ruiz Zambrano Ruiz Zambrano v Office national de l’emploi (Case C-34/09) [2012] QB 265, (“Zambrano”) as subsequently re-stated and developed in Chavez-Vilchez v Raad van Bestuur van de Sociale Verzekeringsbank (Case C-133/15) [2018] QB 103 (“Chavez-Vilchez“).

As per Regulation 16(9), “In paragraph … 5(c), if the role of primary carer is shared with another person in accordance with paragraph 8(b)(ii) the words “the person” are to be read as “both primary carers.”

Regulation 16(7) defines an “exempt person” for the purposes of Regulation 16(1)(a). The categories of exempt persons include British Citizens, and persons with Indefinite Leave to Remain (“ILR”).

Regulation 16(12) provides that a derivative right to reside will not arise where decisions are made to remove or exclude the primary carer on grounds of public policy, public security or public health or misuse of rights.

The 2016 Regulations ceased to have effect, save for certain transitional purposes, on 31 December 2020.

Relevant caselaw:

The principles arising in the following caselaw( CJEU and domestic), were considered by the Court in Velaj:

  • Ruiz Zambrano v Office national de l’emploi(Case C-34/09) [2012] QB 265, (“Zambrano”) :- Zambrano concerned a family living in Belgium: the parents were third country nationals of Colombia. Two of their children were Belgian citizens, and therefore citizens of the EU by virtue of Art 20 of the TFEU. The CJEU held that Art 20 of the TFEU precludes national measures which have the effect of depriving EU citizens of the genuine enjoyment of the substance of the rights conferred upon them by virtue of their status as EU citizens. Unless the father, who was the family breadwinner, enjoyed the right to live and work in Belgium, he and his wife would have to leave the EU, and the children would in practice have to leave with their parents, which would deprive them of the substance of their rights as EU citizens under Articles 20 and 21.
  • Chavez-Vilchez v Raad van Bestuur van de Sociale Verzekeringsbank (Case C-133/15) [2018] QB 103(“Chavez-Vilchez“):- Chavez-Vilchez concerned EU citizen children who were living with their third country national mothers in the Netherlands. The fathers, from whom the mothers were separated, were Dutch nationals, who provided the children with varying degrees of support. The Dutch authorities had held that the mothers were not entitled to Zambrano rights (including certain state benefits) unless they could show that the fathers were unable to care for the children. The CJEU held that this approach was too simplistic. The fact that the other parent, who was an EU citizen, was willing to assume sole responsibility for the primary care of the EU citizen child was a relevant factor, but it was not sufficient, in and of itself, to conclude that there was not such a degree of dependency between the child and the third country national parent that the child would be compelled to leave the EU if that parent were denied a right of residence. In deciding whether the child would be compelled to leave, account had to be taken of all the specific circumstances, including the age of the child, their physical and emotional development, their emotional ties to each parent and the risks to the child’s well-being that separation from the third country national parent would entail.
  • Patel v Secretary of State for the Home Department[2020] 1 WLR 228 :-  the Court described the reasoning underpinning the Zambrano jurisprudence at [22]: “What lies at the heart of the Zambrano jurisprudence is the requirement that the Union citizen would be compelled to leave Union territory if the TCN [third country national], with whom the Union citizen has a relationship of dependency, is removed.” Lady Arden also observed at [30] that: “The test of compulsion is … a practical test to be applied to the actual facts and not to a theoretical set of facts.”
  • R(Akinsanya) v Secretary of State for the Home Department[2022] EWCA Civ 37[2022] 2 WLR 681, (“Akinsanya”) :- The claimant in Akinsanya was a national of Nigeria who was the sole primary carer for a British Citizen child. She was initially issued with a 5 year residence card as a Zambrano carer, but she was subsequently granted 30 months’ leave to remain in the UK under Appendix FM to the Immigration Rules. She then made an application for ILR under the EU Settlement Scheme (“EUSS”). She contended that she met the criteria for ILR set out in Appendix EU to the Immigration Rules because she was a person who had a Zambrano right to reside and she had completed the requisite continuous qualifying period of five years. The Secretary of State argued that Ms Akinsanya did not qualify under the EUSS because Annex 1 to Appendix EU defined “a person with a Zambrano right to reside” as excluding persons who had leave to enter or remain in the UK unless it had been granted under Appendix EU itself. It was contended on Mrs Akinsanya’s behalf that the definition in limb (b) of Annex 1 to Appendix EU did not properly reflect the Zambrano jurisprudence (Ground 1) and/or it did not properly reflect the language of Regulation 16 of the 2016 Regulations (Ground 2). It was argued that there was nothing in Regulation 16 which precluded someone with limited leave to enter or remain in the UK from acquiring (or keeping) derivative rights under that Regulation.As per Underhill LJ in Akinsanya at  paragraphs 33 to 36 the issue, was whether the Secretary of State had, in formulating the Annex 1 definition, erred in her understanding of (a) the Zambrano jurisprudence and (b) Regulation 16 of the EEA Regulations, by proceeding on the basis that a Zambrano right did not arise in circumstances where the carer had any form of leave to enter or remain. If the Secretary of State was wrong about that, it was agreed that the impugned decision would have to be quashed.The Court in Akinsanya found for the Secretary of State on the first issue. After analysing the Zambrano jurisprudence, including Iida v Stadt Ulm (Case C-40/11) [2011] Fam 121 and Secretary of State for the Home Department v A (Case C-115/15) [2017] QB 109, Underhill LJ concluded that as a matter of EU law, a Zambrano right is a right of last resort which does not arise if the third-country national carer otherwise enjoys a right under domestic law to reside in the member state in question.However, the conclusion that the definition in Annex 1 to Appendix EU did accurately reflect the Zambrano jurisprudence was not the end of the matter. As Underhill LJ explained at paragraph 57 in Akinsanya, it was unclear whether in framing that definition the Secretary of State intended to restrict rights under the EUSS to people whose rights to reside at the relevant dates directly depended on Zambrano, or whether her intention was to extend those rights to “all those carers whose removal would result in an EU citizen dependant having to leave the UK”. The Court could not, and was not required to, explore the Secretary of State’s purpose in framing the definition because it accepted Ms Akinsanya’s case on the construction of Regulation 16.

The issue in Velaj:

In Velaj, the appeal concerned the correct interpretation of Regulation 16(5)(c) of the 2016 Regulations which defines the circumstances in which a third country national who is the primary carer of a British Citizen has a derivative right to reside in the UK.

The issue which arose in the  appeal was whether a person deciding whether the requirements of Regulation 16(5)(c) are fulfilled must consider whether the British Citizen dependant would be unable to reside in the UK on the assumption that the primary carer (or both primary carers, as the case may be) will leave the UK for an indefinite period (irrespective of whether the assumption is correct); or whether the decision-maker must consider what the impact on the British Citizen would be if in fact the primary carer (or both primary carers) would leave the UK for an indefinite period.

The Court of Appeal considered that it was common ground that the Appellant would not qualify for a Zambrano right under the European jurisprudence because as a matter of fact, his son would not be compelled to leave the EU if he were denied a derivative right of residence. He would be able to stay in the UK with his British Citizen mother, who shared primary caring responsibilities with his father and who would not leave the UK if he were returned to Kosovo. It was also common ground that until the amendments were made by the 2018 Regulations, Mr Velaj would not have qualified as a “primary carer” because his wife, being a British Citizen, was an exempt person.

The Appellant’s case turned on the proposition that, on the true construction of Regulation 16(5) of the 2016 Regulations, he acquired rights under domestic law which go further than the minimum rights guaranteed to Zambrano carers under EU law.

Court of Appeal’s considerations and conclusions on the issues:

The Court of Appeal’s considerations included the following:

  • It was not accepted that Regulation 16(5)(c), as modified by Regulation 16(8) and (9), admits of only one interpretation.
  • The focus is on whether the British Citizen dependant would be “unable” to remain in the UK “if” something happens – i.e. on what will happen to the child if the primary carer leaves (or both primary carers leave). In that context the word “if” requires the decision maker to consider the position of the child on the basis that something is (actually) going to happen. It does not require that premise to be purely hypothetical, let alone counterfactual. Given that the person asking themselves the question has to decide what in practice would happen to the child if that event occurred, it would make little sense to require them to make an assumption that the event will happen if it plainly will not.
  • “If the person left the UK for an indefinite period” could either mean “in the event that the person [in fact] left the UK for an indefinite period” or “on the hypothesis that the person will leave the UK for an indefinite period (regardless of whether in fact he would do so)”. The former seemed to the Court to be the more natural interpretation, and carried with it the necessary implication that the postulated event (here, leaving the UK) is realistic, and not just theoretical. A purely hypothetical event could have no impact, in practice, on the ability of the child or other British Citizen dependant to remain in the UK.
  • It is clear from Chavez-Vilchez and Patel that the question whether the dependant EU citizen would be “unable to reside in the UK” depends on a fact-specific inquiry.  It requires a nuanced analysis of inability, and not a simple analysis of a hypothetical question, and that must mean that the decision-maker is looking at what is likely to happen in reality. The “key issue of inability to reside in the United Kingdom requires detailed consideration and a causal link with the departure of both carers”.
  • That interpretation is also consistent with the stated intention to give effect to Zambrano rights, whereas the rival interpretation would confer a new species of purely domestic derivative rights on someone who would never meet the Zambrano test (or the test in Chen or Ibrahim or Teixeira), in circumstances where the departure of that person from the UK would in practice have no effect at all upon the ability of the British Citizen dependant to remain in the UK. The question whether the legislator is likely to have intended this consequence admits of only one answer in the present case, and that is no.
  • Requiring the decision maker to assume that both primary carers will leave the UK when one of them will undoubtedly stay behind also precludes the type of nuanced inquiry that was envisaged in Chavez-Vilchez.
  • Assuming that “required to leave” is given a wider meaning than “legally compelled” in line with Zambrano itself that means “in the event that P will be forced to leave the UK”. The decision-maker is looking at the likely impact upon the child of the primary carer being forced by law or by economic pressure to leave the UK. It presupposes that on the facts of the specific case, this is a realistic hypothesis.
  • In the Court’s judgment there was nothing in the decision in Akinsanya which precluded the Court in Valej from adopting that construction of Regulation 16(5)(c).

The ratio in Akinsanya- understanding what the case was about:

Velaj is clear:

“59.It is important to understand what that case was. It is set out at [59] of the judgment in Akinsanya:

“the claimant’s case is that limb (b) of the Annex 1 definition is inconsistent with the definition of “exempt person” in regulation 16 (7). Head (iv) of that definition covers a person “who has indefinite leave to enter or remain in the United Kingdom”; but it says nothing about persons with only limited leave. The claimant contends that persons with limited leave are accordingly not exempt persons and by virtue of paragraph 1(b) are entitled to a derivative right to reside, alongside their leave to remain, so long as they satisfy the criteria under one of paragraphs (2)–(6).” [Emphasis added].

60.Thus Ms Akinsanya’s case on Regulation 16 was entirely focused upon Regulation 16(7). She accepted that if she was not exempt, her entitlement to a derivative right to reside would depend on her being able to satisfy the criteria in Regulation 16(5). However the question whether she could or could not do so if she had leave to remain under some other provision of domestic law did not directly arise, and it was not something which this Court considered on her appeal”.

In Velaj, the Court observed that Ms Akinsanya had already satisfied those criteria and obtained her derivative rights of residence as a Zambrano carer before she was granted limited leave to remain. She met the requirements of Regulation 16(5)(c) or its predecessor, Regulation 15A(4A), at the time when she was granted her derivative right of residence. The only question in her case would be whether the grant of limited leave to remain somehow superseded her Zambrano right or meant that she was no longer entitled to it – she was contending that it did not because the two rights could co-exist. It was common ground that if she won on either of her grounds of appeal, the impugned decision to refuse her claim under the EUSS (on the basis that she did not qualify) would have to be reconsidered by the Secretary of State.

As Underhill LJ pointed out at paragraph 60 in Akinsanya, the claimant’s case was clearly right on any natural reading of Regulation 16(7), and it also reflected the understanding of the Home Office at the time when the Amendment Regulations, which introduced the concept of “exempt persons” were made. Guidance issued to UK Border Agency staff in 2012 stated that: “where someone has limited leave (and so is not listed as one of the exempt categories above) and can demonstrate that they meet all other requirements of regulation 15A, then they can acquire a derivative right of residence.”

The focus of the argument thereafter was on whether Regulation 16(7) should be given a construction that was different from its ordinary and natural meaning.

The Court in Velaj set out what the ratio was in Akinsanya:

“64.Whilst accepting the likelihood that in making the relevant parts of Regulation 16 the SSHD intended, in a broad sense, to do no more than to implement the minimum requirements of Zambrano, Underhill LJ said that this begged further questions. The SSHD may have misunderstood what those requirements were, since Iida and A had not been decided when the Amendment Regulations were made in 2012. Alternatively,

“it may be that the Secretary of State took the view that allowing a Zambrano right to reside to those who already had limited leave to remain was more straightforward than having to consider whether particular forms of leave to remain, and in particular the conditions about working to which they might be subject, were fully consistent with Zambrano rights.”

In the end, however, he said that the short answer was that the language of Regulation 16(7)(c)(iv) [which referred specifically to persons with ILR] was simply too clear to allow it to be construed as covering persons with limited leave to remain. That was the ratio of the decision in Akinsanya”.

Velaj emphasises;

“65.In Akinsanya this court was not required to consider, and did not consider, the requirements of Regulation 16(5) and how 16(5)(c) might be satisfied in practice by a primary carer who had limited leave to remain. The only issue it had to determine was whether Regulation 16(7) acted as a threshold barrier precluding someone like Ms Akinsanya from asserting that she had a derivative right of residence under Regulation 16(5) (or its predecessor) which had survived the subsequent grant to her of limited leave to remain.

66.The Court in Akinsanya did not have the benefit of hearing the arguments that were advanced in the present case. Those arguments would have had no bearing on the point of construction of Regulation 16(7) which determined the outcome.

67.Mr Cox submitted that the criteria for the grant of the derivative right could not be met by a sole primary carer with limited leave to remain if the words “if the person left the UK for an indefinite period” in Regulation 16(5)(c) were not construed in the manner for which he contended, i.e. as a purely hypothetical premise. If a carer already had limited leave to remain they would not, in fact, leave the UK for an indefinite period and the child would not be compelled to leave with them.

68.Although I see the force of that argument, the immigration status of a person with limited leave to remain is precarious; leave is likely to be subject to conditions and it is liable to be withdrawn or truncated. It is possible to conceive of situations in which the conditions attached to a limited leave to remain are such as to make it impossible in practice for the primary carer to remain in the UK and look after the child.

69.I can also envisage a Zambrano carer whose limited leave to remain is due to expire making an application under Regulation 16(5)(c) and succeeding on the basis that they would have to leave the UK as soon as their limited leave expired and the child would have to go with them. In such a case if the decision-maker asks “what will happen to the child in the event that the primary carer leaves the UK for an indefinite period?” they will not be positing a completely unrealistic scenario. In any event, the practical difficulties of someone with limited leave to remain being able to satisfy the requirements of Regulation 16(5)(c) would not be a justification for construing those requirements in a manner which was clearly unintended.

71.Accordingly there is nothing in the decision in Akinsanya that precludes Regulation 16(5)(c) from being construed as I consider it should be construed”.

The appeal in Velaj was dismissed.

Conclusion

The interpretation of Regulation 16(5)(c) in Velaj enabled the Court to reach the conclusion that the appeal could not succeed.

The Court however did not undertake a detailed consideration as to how on the facts the particular appeal failed. Their analysis and conclusions on Regulation 16(5)(c) are however enough to enable a reader to grasp not only that the Appellant failed to meet the requirements of Regulation 16(5)(c)  but:

  • rejected by the Court were submissions on behalf of the Appellant that the decision-maker must determine whether the British citizen would be unable to reside in the UK on the purely hypothetical premise that their primary carer (or both primary carers) will leave the UK for an indefinite period

The Court’s view was that focus is on whether the British Citizen dependant would be “unable” to remain in the UK “if” something happens – i.e. on what will happen to the child if the primary carer leaves (or both primary carers leave). In that context the word “if” requires the decision maker to consider the position of the child on the basis that something is (actually) going to happen. It does not require that premise to be purely hypothetical, let alone counterfactual. The Court stated that given that the person asking themselves the question has to decide what in practice would happen to the child if that event occurred, it would make little sense to require them to make an assumption that the event will happen if it plainly will not.

Ultimately, the assessment of whether the British citizen would be unable to reside in the UK, the EEA if the applicant were required to leave the UK for an indefinite period requires a fact-based enquiry looking at whether, in practice, the British citizen would be unable to remain in the UK, or an EEA Member State or Switzerland, if the applicant (or, as the case may be, both primary carers) were  in fact required to leave the UK for an indefinite period. There is no need to make assumptions.